Vincent Mattaliano v. Comstock Yacht Sales and Marina

Plaintiff Vincent Mattaliano appeals from the order of the



Law Division dismissing his personal injury cause of action



against defendant Comstock Yacht Sales and Marina. In granting



defendant's summary judgment motion, Judge Suter found that  plaintiff had not established that his injuries were caused by



any improper act or omission of defendant. We affirm.



Defendant is in the business of selling boats. Toward that



end, it keeps various boats at docks located on Princeton Avenue



in the Township of Brick "in order that potential buyers can



look at them." The docks used are "floating" docks, designed to



rise and fall with the tide, keeping the boats moored to them at



the same level as the docks. This makes it easier for anyone on



the dock to board the boat.



Plaintiff is an experienced boater. At the time of the



accident, plaintiff was in his mid-forties, weighed



approximately 400 pounds, and had degenerative changes in his



left knee. On May 4, 2005, (the day before the accident),



plaintiff gave defendant a deposit to purchase a 32 foot



Bayliner Avanti. The following day, plaintiff and his then



fianc�e Sharon Lynn arrived at defendant's Brick location to



inspect the boat accompanied by an independent marine surveyor



named Bob Mathiasen.



While walking down the dock, plaintiff did not notice any



problems with the dock, the moorings, or the way the boats were



docked. The boat was moored to the floating dock with its stern



closest to the dock, at most three feet from the dock. Because



the boat was equipped with a swim deck at its stern, it had "to









A-0173-08T1 2  be docked a little bit further away from the dock to prevent the



swim deck from bumping against the dock." Mathiasen was already



on the boat at the time plaintiff arrived.



In order to assist plaintiff and Lynn in boarding the boat,



Mathiasen pulled the mooring lines to move the boat closer to



the dock. Plaintiff and Lynn then stepped onto the boat from



the dock. When he was ready to leave the boat, plaintiff pulled



the mooring line to get the boat closer to the dock. However,



he let go of the line before stepping onto the dock. The boat



began to move away from the dock, and as he was stepping onto



the dock, plaintiff fell, injuring his knee.



When asked why he did not request Mathiasen to pull the



boat closer for him, plaintiff candidly said that he "did not



think of it." According to Lynn, had he been holding the lines



while he stepped off the boat, plaintiff would not have fallen.



In his complaint, plaintiff alleged that defendant was negligent



in failing to tie the boat down, thereby breaching warranties



owed to plaintiff, and creating a nuisance.



In response to defendant's motion for summary judgment,



plaintiff argued that, as a business invitee, defendant owed



plaintiff a duty to provide a safe and secure means of entering



and departing the boat. Plaintiff did not produce any evidence,



however, showing that the manner and means used by defendant in









A-0173-08T1 3  providing access to the boat deviated from or were otherwise



inconsistent with a recognized industry standard or regulatory



scheme.



Plaintiff did not oppose defendant's motion for summary



judgment seeking to dismiss the counts in the complaint alleging



nuisance and a breach of warranty. Plaintiff argued, however,



that the question of defendant's negligence should be decided by



a jury. Specifically, plaintiff argued that the manner in which



the boat was moored, his physical limitations associated with



his weight and degenerative knee problems, and defendant's



failure to ensure that he got on and off the boat safely, were



sufficient evidence to sustain a jury verdict finding defendant



liable for his injuries.



Judge Suter rejected plaintiff's argument and granted



defendant's motion for summary judgment. She gave the following



explanation in support of her ruling:



In this case, plaintiff is an invitee because he was on defendant's property for defendant's business purposes, e.g., to look to purchase a boat. This is not disputed. An invitee is a party explicitly invited onto the landowners' premises, to whom the landowner owes a duty of reasonable care. Butler v. Acme Markets, 89 N.J. 270, 275 (1982). Business invitees are included in this class and are those who are invited onto the premises by the landowner for the purpose of conducting business, or whose presence on the land is a direct or indirect source of profit to the landowner. [Ibid.]





A-0173-08T1 4  Not only must a landowner warn invitees about dangerous conditions that he/she knows of, but part of the owner's standard of care also includes the duty to conduct a reasonable inspection to discover latent dangerous conditions. [Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)] (citing Handleman v. Cox, 39 N.J. 95, 106 (1963)).



Here, however, the court will not impose a new duty upon marina owners to tie up all boats tight to the dock and have employees present whenever someone gets on or off of a boat. It would go against an abiding sense of basic fairness and create almost limitless liability for the defendant as a marina owner. Plaintiff was on defendant's premises for business purposes, but the nature of the attendant risk was obvious. The dock was floating on the water and the boats were moored by three-foot long rope. Plaintiff, experienced with boats according to the record, assumed such risk. There is no evidence that has been presented that would show this constituted a breach of defendant's duty to plaintiff.



There are no genuine issues of material fact raised here about the condition of the boat or dock. Plaintiff has not shown that the dock or boat were in a deficient condition at the time of the incident. Rather, the record shows that defendant's employees frequently checked the dock to ensure safety and proper condition. Plaintiff has not come forth with any expert testimony to support the opinion that the defendant's method of mooring its boats - e.g., by a three-foot length of rope tied to the dock - was improper. Rather, the concept of a floating dock is that it floats on the water. Boats float on the water as well, but nothing has been proffered as to how a floating dock presents a less safe ingress and egress as a floating dock.





A-0173-08T1 5  Additionally, since it is clear that the dock floats on the water, the risk is obvious to any person who steps onto such a dock. The dock will move - that is its nature.



Plaintiff contends that defendant must tie up the boat more sufficiently and have a spotter, e.g., an employee there at all times to assist a customer onto a boat. However, plaintiff has cited no authority for such a proposition, nor has plaintiff come forward with any professional standards where such a practice is mandated. . . . Moreover, public interest will not be furthered through the imposition of such a new duty on marina owners. Clearly, water's movement cannot be controlled. Thus, no genuine issue of material fact has been raised about any duty toward the defendant.



Plaintiff now appeals. Citing Brill v. Guardian Life Ins.



Co., 142 N.J. 520, 540 (1995), plaintiff argues that summary



judgment was improvidently granted, because the evidence



discussed supra create genuine and material factual issues in



dispute that must be resolved by a jury. He also argues that



the motion judge misapplied the Supreme Court's holding in



Hopkins v. Fox & Lazo Realtors, supra. 132 N.J. at 434.



We reject that argument and affirm substantially for the



reasons expressed by Judge Suter in her well-reasoned memorandum



of opinion dated August 15, 2008. We add only the following



brief comments.



A trial court must grant summary judgment to the moving



party if "there is no genuine issue as to any material fact





A-0173-08T1 6  challenged and that the moving party is entitled to a judgment



or order as a matter of law." R. 4:46-2(c); see also Brill,



supra, 142 N.J. at 529. In reviewing the trial court's decision



in this respect, we use the same standard that governs trial



courts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.



Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608



(1998).



We are satisfied that there are no material factual issues



in dispute. Accepting his version of how the accident occurred,



and considering the remaining evidence concerning his physical



limitations and the manner the boat was moored to the dock in



the light most favorable to plaintiff, we agree with Judge Suter



that "[p]laintiff has not shown that the dock or boat were in a



deficient condition at the time of the incident."



To sustain a cause of action in negligence, a party must



prove that there was a duty of care, a breach of that duty,



Polzo v. County of Essex, 196 proximate causation, and damages.



N.J. 569, 584 (2008). "Whether a duty of care exists is a



question of law that must be decided by the court." Jerkins v.



Anderson, 191 N.J. 285, 294 (2007). The mere occurrence of an



accident on someone's else property does not render the owner of



such property liable. Those seeking to impose liability on the









A-0173-08T1 7  property owner bear the burden of showing what reasonable



measures could have been taken to avoid the accident.



Generally, "[a]n owner or possessor of property owes a



higher degree of care to the business invitee because that



person has been invited on the premises for purposes of the



owner that often are commercial or business related." Hopkins,



supra, 132 N.J. at 433. The degree of care owed is one of



"reasonable care to guard against any dangerous conditions on



his or her property that the owner either knows about or should



have discovered. That standard of care encompasses the duty to



conduct a reasonable inspection to discover latent dangerous



conditions." Id. at 434; see also Monaco v. Hartz Mountain



Corp., 178 N.J. 401, 404 (2004) ("[A] landowner owes a duty to



its invitees to maintain its land in a safe condition, to



inspect, and to warn of hidden defects whether within its power



to correct or not . . . .").



Hopkins explained that "[w]hether a person owes a duty of



reasonable care toward another turns on whether the imposition



of such a duty satisfies an abiding sense of basic fairness



under all of the circumstances in light of considerations of



public policy." Id. at 439. That requires a court to identify,



weigh and balance several factors: "the relationship of the



parties, the nature of the attendant risk, the opportunity and









A-0173-08T1 8  ability to exercise care, and the public interest in the



proposed solution." Ibid.



Floating docks are designed to float. When plaintiff



pulled on the mooring line, he intended for the boat to move



closer to the dock. When he let go of the line, he should have



expected that some movement of the boat away from the dock would



occur. In short, plaintiff was in control of his person and his



immediate environment at all times leading to his fall.



In his cause of action, plaintiff merely asserts that



defendant should have prevented his fall, without identifying



what measures defendant was legally responsible to take to



prevent it. As Judge Suter correctly noted, "public interest



will not be furthered through the imposition of such a new duty



on marina owners."



* * *



See: http://lawlibrary.rutgers.edu/courts/appellate/a0173-08.opn.html

Affirmed

Editor's Note: Mr. Mattaliano wrote on June 24, 2009: "I have been saying all along from the beginning of all this that the swim deck was 2 foot lower then the dock and with the distance and the height of the step I received a Torn Quadriceps muscle (not a slip and fall) as stated."