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TITLE: HUNTERDON COURT DENIES SUMMARY JUDGMENT IN CLINTON DICKENS LANE CASE
Lenora H. Sentz
v.
Dickens Lane LLC, Our Own, Inc., Dickens Jewelry, Balic of Clinton, and John Does 1-25
Docket No. HNT-L-383-08
Our Own’s Motion for Summary Judgment
Opposed
Argued & Decided August 27, 2010
The Honorable Peter A. Buchsbaum, J.S.C.
A defendant in this slip and fall case seeks summary judgment. The plaintiff slipped on a sidewalk at the property line between two properties Because the plaintiff provided an expert’s opinion indicating the sidewalk she slipped on caused her injuries, the Court will deny the motion.
Facts:
On November 30, 2007 the plaintiff allegedly fell in Clinton, New Jersey between six and eight East Main Street due to a height differential between the sidewalk and brick pavers. At the time of the fall Our Own, Inc. (Our Own) owned eight East Main Street. Dickens Lane Jewelers
1 (Jewelers) leased eight Main Street. Dickens Lane, LLC (Dickens Lane) owned six East Main Street. Balic of Clinton, leased the first floor of eight East Main Street. It operated a Wine and Gifts shop. Plaintiff allegedly fell as she exited the Jewelers walked down three steps and made a right in the direction of Eight Main Street, toward Our Own. See Defendant’s Exhibit B, Sentz 3.The plaintiff described her fall as follows:
I fell. I tripped on, and that I didn’t know what I tripped on, but I know I can, I can describe my foot hit and I flew. I did not
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The Court previously granted the Jewelers’ motion for summary judgment.- 1 -
fall, I flew. Exhibit H, Sentz Dep. 90:24-25, 91:1-3.
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The foregoing facts are taken from exhibits in the earlier summary judgment motion.While looking up after her fall the plaintiff noticed a sidewalk height differential and she states she "tripped on something high with my foot." Sentz Dep
. 104:1-17. The plaintiff stated the photograph marked Sentz 2 best showed the area where she fell. Sentz Dep. 108:11-14, See Exhibit B, Sentz 3. The picture depicts an apparently raised sidewalk after a lower level brick walk with a Wines and Gift shop depicted back and to the right. Id. The owner of Our Own stated that the tenants never informed him about the sidewalk differential. Cert. of Picini, Exh. F, Gonzalez Dep. 53:2-25. The lease between Jewelers and its landlord obligated the landlord to maintain public areas but required Jewelers to notify the landlord of any "defects or dangerous conditions in and about the premises of which Tenant becomes aware." Cert. of Caruso, Exh. I. The property line between Six and Eight Main Street stands at the point between the brick pavers and the concrete sidewalk. Exhibit G, 22:16-21. The plaintiff alleges she fell at that point. See Exhibit B, Sentz 3.2The police report includes an estimate that "the concrete sidewalk is about 1 1/2" to 2" higher than the brick and the concrete is heaved its [sic] up in parts." Rachmiel Cert., Exh. B.
The plaintiff obtained an expert report from James A. Kennedy, P.E. (Kennedy). Rachmiel Cert., Exh C. In his report, Kennedy concludes that "the property owners and occupants failed to properly maintain the subject pedestrian walkway in accordance with recognized engineering standards." Id. at 6. In reaching his conclusion, Kennedy reviewed depositions from the plaintiff, nearby property owners, photographs, interrogatory answers, and inspected the site subsequent to repairs. Id. at 1,9. Plaintiff’s expert also noted that the American Society for Testing and Materials (ASTM) Standard Practice for Safe Walking Surfaces deems walking surfaces substandard where the pavement is broken or uneven. Id. at 4. He also noted that the Barrier Free Subcode of the New Jersey Uniform Construction Code (Code) cites another code which dictates that "Changes in levels greater than ½ in. shall be ramped." Id. Kennedy concluded that the uneven surface where the plaintiff tripped violated the ASTM and Code standards. Id. at 6. He opined that the nearby owners
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and occupants could have used high visibility paint, warning signs, or barriers to decrease the hazardous nature of the sidewalk. Id. He also found that the height differential was located on the property line. Id. at 1.
Our Own’s Arguments:
Our Own argues the opinion from the plaintiff’s expert constitutes a mere net opinion and the plaintiff provided no evidence of any action by it which caused her injuries. In support of its net opinion argument, Our Own maintains Kennedy failed to offer an applicable engineering standard.
Plaintiff’s Opposition:
The plaintiff argues Our Own breached its duty by allowing a hazardous condition to remain. She relies heavily on
Stewart v. 104 Wallace St. Inc., 87 N.J. 146, 157 (1981), as showing commercial landowners owe a duty to maintain sidewalks abutting their property. Plaintiff maintains the evidence of an height difference between the brick pavers and the concrete slabs indicates a breach of that duty.The plaintiff next defends her expert’s opinion. She notes Kennedy reviewed photographs, deposition testimony, and the sidewalk. She maintains Kennedy’s opinion of a breach is based on the published standards discussed in his report. The plaintiff also relies on
Nastri v. Franciosi, 185 N.J. Super. 93, 94 (App. Div. 1982), to argue that expert reports constitute a bare bones opinion to be expanded on at trial. She argues barring Kennedy’s testimony would therefore be premature.Dickens Lane’s Arguments:
Dickens Lane also opposes the motion and argues a jury could find Our Own negligent for the sidewalk condition. It maintains the evidence demonstrates the plaintiff did not encounter a problem walking until she reached the property line dividing its property from Our Own’s. It notes its expert concluded Our Own acted negligently.
Our Own’s Reply:
Our Own argues the plaintiff failed to demonstrate "the hazardous condition of the sidewalk was caused by this defendant’s negligence." It maintains that neither
Stewart, supra, nor subsequent cases justify imposing liability on an- 3 -
adjacent commercial property owner. It relies on
Muzio v. Krauzer, 122 N.J. Super. 221 (App. Div. 1971), to argue a property owner is not liable for injuries suffered by a pedestrian on a poorly maintained sidewalk even if it constitutes a nuisance unless the evidence shows the owner created or participated in continuing the nuisance. Our Own maintains evidence of creation or participation is lacking here. Lastly, Our Own takes issue with the police report by arguing that the report could have said the brick is lower than the concrete instead of vice versa.Summary Judgment Standard:
"A motion for summary judgment is not unlike the unveiling of a statue. The motion substantially supported requires the opposition to remove the shielding cloak and demonstrate the existence of a controversial issue concerning a material fact."
Templeton v. Scudder, 16 N.J. Super. 576, 585 (App. Div. 1951).A party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged."
Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954) (citation omitted)."[A] determination whether there exists a ‘genuine issue’ of material fact that precludes summary judgment requires the motion judge to 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 fact finder to resolve the alleged disputed issue in favor of the non-moving party."
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995). Accordingly, "when the evidence is ‘so one-sided that one-party must prevail as a matter of law,’ the trial court should not hesitate to grant summary judgment." Id. (citation omitted).Analysis:
Negligence
In
Stewart v. 104 Wallace St. Inc., 87 N.J. 146, 149 (1981), the Supreme Court considered the potential negligence- 4 -
liability of a commercial property for a decrepit sidewalk which abutted his property. The Court overruled previous caselaw which had held that an abutting owner was not liable for conditions on a sidewalk caused by wear and tear. Id. at 153. The Court rejected the rule of general non-liability and noted it had left plaintiffs with no recourse for injuries and did not encourage property owners to undertake repairs. Id. at 155 (citations omitted). Based on these considerations the Court held "that commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Id. at 157. Among the benefits stemming from this holding, the Court noted that it would encourage landowners to "keep their sidewalk in proper repair." Id. at 157.
The holding in
Stewart, remains binding on this Court. The only limiting interpretations on Stewart, appear to be in the context of a vacant commercial lot, see Abraham v. Vijay Gupta, 281 N.J. Super. 81, 85-86 (App. Div. 1995), and a grassy path which did not constitute a sidewalk, see Chimiente v. Adam Corp., 221 N.J. Super. 580, 581 (App. Div. 1987). As recently as 2004, both the Supreme Court and the Appellate Division have noted with approval the holding from Stewart, see Monaco v. Hartz Mt. Corp., 178 N.J. 401, 414 (2004), see also Bedell v. St. Joseph's Carpenter Soc., 367 N.J. Super. 515, 519 (App. Div. 2004). Therefore, the holding from Stewart, supra, remains binding.Our Own argues the plaintiff failed to point to any action by which it acted negligently. This argument misses the potential for liability provided in
Stewart, supra, for negligent maintenance. See Id. at 157. The plaintiff here is alleging liability not for any action by Our Own in destroying or damaging the sidewalk, but rather for not "maintaining in reasonably good condition," the sidewalk that abuts its property. See Id. at 157. Although Our Own argues that Muzio v. Krauzer, 122 N.J. Super. 221 (App. Div. 1971), requires a grant of its motion, that case was decided under the pre-Stewart, rule of general non-liability. Furthermore, the concurrence in Muzio found against liability based on then binding precedent which "left an innocent invitee-victim without legal recourse", a circumstance remedied in Stewart.In addition, the facts of this case require a finding that Our Own can be liable. The plaintiff tripped at the property line between two businesses. Thus, a jury could find that this
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defendant was responsible since it suffered a dangerous abutting condition to exist. Defendant in effect concedes the existence of a jury question when it argues, Reply at 4, that the height differential could be characterized as the brick being lower than the sidewalk, rather than
vice versa. However, that kind of factual determination requires resolution by a jury. Allowing Our Own to evade liability would shield one property owner from liability for a possibly dangerous condition on its border. Therefore, genuine issues of material fact exist as to whether Our Own negligently maintained the abutting sidewalk.Net Opinion
Our Own also argues the plaintiff’s expert provided an inadmissible net opinion.
N.J.R.E. 702 allows for the admission of expert testimony when it would help the trier or fact understand evidence or a fact at issue. N.J.R.E. 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
"An expert is required to give the ‘why and wherefore" of his or her opinion, not just a mere conclusion or speculation."
Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div. 2009) (quoting Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525-526 (App. Div. 2007)). Specifically the expert should base testimony on personal observations, evidence admitted at trial, or data relied of the same type normally relied on by experts in the field. Polzo v. County of Essex, 196 N.J. 569, 583 (2008) (citing State v. Townsend, 186 N.J. 473, 494 (2006)). However, our Supreme Court has cautioned against requiring an expert to compile more evidence in submission of an opinion than is necessary. Glen Wall v. Wall Township, 99 N.J. 265, 280 (1985). Further, "the discretion of the trial court to reject expert testimony should be used with great caution in light of the strong policy established by N.J.R.E. 402 in favor of admission of all relevant evidence". Biunno, New Jersey Rules of Evidence, Comment 2 to N.J.R.E. 702 (2009 Ed.).- 6 -
Here the plaintiff’s expert provided the whys and wherefore of his conclusion that Our Own breached its duty by allowing the sidewalk condition to persist. He cited to two applicable standards, the Code and ASTM, which both require relatively even sidewalks. Furthermore, he visited the sight, post-repair, and reviewed interrogatories, depositions, and photographs. Furthermore, it appears Kennedy’s opinion would assist the trier of fact in evaluating whether Our Own should have acted to warn or obviate the unevenness in the sidewalk. Therefore, the plaintiff’s expert did not provide an inadmissible net opinion. Because Kennedy did not offer a net opinion and a genuine issue of material fact exists as to whether Our Own failed to maintain the sidewalk abutting its property.
Conclusion:
Based upon the foregoing, Our Own’s motion for summary judgment is
DENIED.
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