Opinion
DOCKET NO. A-0149-14T2
02-01-2016
CARMEN BAEZ, Plaintiff-Appellant, v. INSERRA SUPERMARKETS d/b/a SHOPRITE OF BAYONNE, ALD REALTY CO. INC., Defendant-Respondent.
Pasquale Agresti argued the cause for appellant (Law Office of Pasquale Agresti, PC, attorney; Mr. Agresti, on the brief). Scott D. Samansky argued the cause for respondent (Fishman McIntyre Levine Samansky P.C., attorneys; Mr. Samansky, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4221-13. Pasquale Agresti argued the cause for appellant (Law Office of Pasquale Agresti, PC, attorney; Mr. Agresti, on the brief). Scott D. Samansky argued the cause for respondent (Fishman McIntyre Levine Samansky P.C., attorneys; Mr. Samansky, on the brief). PER CURIAM
Plaintiff Carmen Baez appeals from the order of the Law Division granting defendant Inserra Supermarkets, d/b/a ShopRite of Bayonne's motion for summary judgment and dismissing with prejudice her personal injury action. We affirm.
Because the Law Division dismissed plaintiff's complaint as a matter of law, we will review all of the facts developed by the parties, including any legitimate inferences that can be drawn therefrom, in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
In the complaint plaintiff filed in the Law Division on October 7, 2013, she stated that on July 3, 2012, she was walking on the sidewalk adjacent to defendant's ShopRite located on Avenue C in Bayonne, when "she was caused to slip and fall on a cracked and/or damaged sidewalk due to defendant's negligence." Plaintiff was sixty years old at the time. After joinder of issue, the parties engaged in discovery. Defendant submitted to plaintiff a set of written interrogatories following the model form approved by the Supreme Court in Appendix II, Form A, in the Rules Governing the Courts of the State of New Jersey. Interrogatory 2 asked plaintiff to: "Describe in detail your version of how the accident occurred setting forth the date, location, time and weather." Plaintiff provided the following response:
I was leaving the Shop[R]ite in Bayonne located at 567-589 Avenue C through the
Shop[R]ite Liquors entrance/exit. I had my grocery bag pushcart and was walking with that in front of me when while I was still on the sidewalk, I fell due to a depression on the sidewalk. I saw the depression on the sidewalk after I had fallen.
At her deposition, plaintiff testified she shopped regularly at this ShopRite once per month since the store opened several years earlier. On the date of the accident, she was inside the store shopping for approximately forty-five minutes. She left the store pushing the shopping cart. Plaintiff gave the following description of how the accident occurred:
Q. Why did you fall? It's not a trick question.
A. Why did -- I just took the shopping cart and moved it and I went down.
Q. What do you mean that you took your shopping cart and just moved it?
A. You know, of course, you got to move it because I just came out of the supermarket. So I just moved it and went (gesturing).
Q. You fell forward?
A. Yes, I did.
Q. Where the wheels of the shopping cart on one side, meaning there's -- the wheels would be in the back and then nothing in front?
A. No, there's two big wheels in the front and two little ones in the back.
Q. So there's a total of four wheels on the shopping cart?
A. Yes.
. . . .
Q. - - when you went to push the cart. Did you notice before falling -- before you fell if there was anything in that area such as debris, food, rocks, anything?
A. No, I didn't notice anything before.
. . . .
Q. Now I'm going to take you after you fell. After you fell did you look back or look down, or whatever, to see what it was that may have caused you to fall?
A. No, I didn't see. I didn't look. You know, after I was sitting down, my main concern was my face.
Q. Sure, Okay. As you sit here today now not quite two years later --
A. Mmm-hmn.
Q. — do you know what caused you to fall?
A. No, not really. Maybe -- no, I don't.
. . . .
Q. Do you know if you tripped, if you slipped, if you stumbled or some other word?
A. No.
. . . .
Q. You didn't feel anything on your feet?
A. No.
Q. And when I say that, did you feel something slip or slide?
A. No.
Q. Did you feel anything catch or grab your foot?
A. No.
Q. Did you stub your toe?
A. No.
Q. What kind of shoes were you wearing?
A. Sneakers.
Q. Did you damage your sneakers in any way?
A. No.
Q. Did anyone come over to you and say they saw you fall or they saw why you fell, anything like that?
A. Nobody came to me, but the two young -- there was a young man and then this older man came and they helped me up. And that's when they sat me.
. . . .
Q. Was there any discussion between you and either of those gentlemen regarding the actual accident itself?
A. No.
Against this evidential backdrop, Judge Lawrence M. Maron granted defendant's motion for summary judgment. Judge Maron explained his ruling in a memorandum of opinion attached to the order. After discussing the relevant standard of review reflected in Rule 4:46-2(c) and Brill, supra, 142 N.J. at 40, and acknowledging defendant's duty to maintain the sidewalks abutting its property in a reasonably good condition, Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), Judge Maron found plaintiff "has not offered sufficient evidence to demonstrate that there was a defect for which [d]efendant should be held accountable."
The Supreme Court reaffirmed its holding in Stewart in Luchejko v. City of Hoboken, 207 N.J. 191, 195 (2011). --------
Plaintiff now appeals arguing Judge Maron erred in granting defendant's motion for summary judgment because plaintiff's certified responses to defendant's interrogatories, in which she indicated she fell due a "depression in the sidewalk," shows there is a legitimate issue of material fact as to the cause of the accident. Plaintiff argues the plain language in Rule 4:46-2(c) precludes the granting of summary judgment. Plaintiff maintains a jury must determine which version of plaintiff's account of what caused her to fall is more credible.
We review a grant or denial of summary judgment using the same standards used by the trial court. Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). A court must grant summary judgment must 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). We must determine whether the competent evidence presented, viewed in the light most favorable to plaintiff as the non-moving party, is sufficient to permit a jury to resolve the alleged disputed issue in her favor. Brill, supra, 142 N.J. at 540.
Applying this standard to the record before us, we affirm substantially for the reasons expressed by Judge Maron. In her deposition testimony, plaintiff candidly and unequivocally stated that she does not know what caused her to fall. Plaintiff's answer to defendant's interrogatory merely mimics the language in the complaint prepared by her counsel. We are satisfied that the competent evidence overwhelmingly demonstrates there are no legitimate material facts in dispute. As described by plaintiff in her deposition testimony, the mere occurrence of an accident is not sufficient to impose liability on the commercial property owner. Plaintiff has not presented any evidence that a defect on the sidewalk abutting defendant's property proximately caused her to fall.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION