Opinion
DOCKET NO. A-1345-14T3
05-27-2016
PIETRA ILG and JAMES ILG, Plaintiffs-Appellants, v. TOM MEADE and PATRICIA MEADE, Defendants-Respondents.
Scott S. Levinson argued the cause for appellants (Law Office of Steven G. Fauth, LLC, attorneys; Mr. Levinson, on the briefs). Chris E. Piasecki argued the cause for defendants (Graziano, Piasecki & Whitelaw, attorneys; John R. Parker, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0373-13. Scott S. Levinson argued the cause for appellants (Law Office of Steven G. Fauth, LLC, attorneys; Mr. Levinson, on the briefs). Chris E. Piasecki argued the cause for defendants (Graziano, Piasecki & Whitelaw, attorneys; John R. Parker, on the brief). PER CURIAM
Plaintiff, Pietra Ilg, instituted a suit against her neighbors, defendants Tom and Patricia Meade, for injuries she sustained when she fell on or about defendants' property while walking to defendants' home. Finding that plaintiff could not establish where she fell, and that defendants did not breach a legal duty to plaintiff, the Law Division judge granted defendants' motion for summary judgment. Plaintiff appeals and we affirm.
The complaint contained a per quod claim by her husband James Ilg. Because his claim is derivative only, and was later abandoned, the singular term "plaintiff" is used herein to refer to Pietra Ilg. --------
We recite the facts found in the summary judgment record. We view all facts in a light most favorable to plaintiff. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).
On January 23, 2011, at approximately 9:00 p.m., plaintiff alleged that she slipped and fell on snow and ice while walking next door to defendants' home. The purpose of the visit was to assist with a science project that the parties' children, who were classmates, were jointly working on.
Plaintiff had walked to defendants' home earlier that day to assist with the homework assignment. At that time, she observed two cars parked in defendants' driveway. The car closest to the street, an Audi, partially blocked defendants' sidewalk. According to defendants, they parked their cars in the driveway in that manner whenever the streets needed to be plowed following a significant snowstorm.
On her initial visit to defendants' home, plaintiff walked down her driveway and into the street to avoid defendants' car. She then walked past defendants' driveway and back up onto the sidewalk before arriving at defendants' door without incident. Plaintiff returned home about an hour later, traversing the same route she took to get there, again without incident.
Neither party could recall whether it snowed that day. However, there was snow from previous snowfalls at a height plaintiff estimated to be somewhere between her ankle and her knee. At his deposition, Tom Meade testified that defendants' sidewalk and driveway were cleared, but there was still snow in the area and on defendants' property.
Later, around 9:00 p.m., plaintiff again walked to defendants' home to correct a typographical error she found in the homework assignment. This time, plaintiff walked out of her house, along her driveway, and instead of walking in the street she "made a right and proceeded . . . on the sidewalk." In her answers to interrogatories, plaintiff stated that "[defendants'] car was blocking the sidewalk, forcing me to attempt to walk around it, causing me to slip and fall on snow and ice." When questioned at her deposition, plaintiff described the incident as follows:
Q. When you walked around the car, where were you going to walk? Give me details.
Where were you going to walk? Where were you going to step?
A. I was going to put my foot down on the sidewalk that was right before the [] apron.
Q. The sidewalk that was right before the apron?
A. Yes.
Q. Okay. And did you do that?
A. Yes.
Q. And did you continue?
A. No, I don't know what happened.
Q. Okay. So you were on the sidewalk, you were still on the sidewalk, right, you said you were going to put your foot on the sidewalk right before the apron?
A. I — to the left of me.
Q. Okay.
A. I put my foot.
Q. On the sidewalk?
A. Right, and then on the [] curb right there where there was snow, and I was going to walk around it.
Q. Okay. So you put your foot on the curb or on the sidewalk?
A. Probably both.
Q. Okay. And which foot is that, your left foot?
A. Yes.
Q. You were able to see the curb and the sidewalk where you were stepping? You made a decision that that's where you were going to step?
A. Yes.
Q. You saw what you were going to step on, correct?
A. Yes.
Q. Okay. What happened?
A. I stepped, went, continued, and before I knew it, I was down.
Q. Okay. So it was that one step onto the curb and the sidewalk and you fell down?
A. I'm assuming. I don't know. I don't remember. All I know is I was on the ground.
Plaintiff stated she did not have any reason for traveling a different route than the one she took earlier that day. She cried out for help, and used the back of the Audi to lift herself up. She then walked to defendants' front door, and the police and an ambulance were summoned. Plaintiff was transported to the hospital, where she underwent surgery for a fractured wrist the following day. The police instructed defendants to move the car that was blocking the sidewalk.
Defendants moved for summary judgment. Following oral argument on October 24, 2014, the court found that plaintiff was a social guest on defendants' property and therefore defendants owed her only a limited duty of care. Plaintiff had visited defendants' home earlier that day, and the "[t]he position of the car was obvious to her." Accordingly, the court found defendants had no duty to warn her of it. Additionally, the court found that it was "not even clear where [plaintiff] fell, how she fell, or why she fell." Nor was it clear "that [plaintiff] fell on [defendants'] property at all, and that's her [] burden." The court granted summary judgment to defendants and dismissed plaintiff's complaint. This appeal ensued.
Plaintiff argues on appeal that defendants were negligent in knowingly blocking the public sidewalk with their vehicle, thus forcing her to walk on an icy area where she slipped and fell. Plaintiff further argues that defendants owed a duty to warn her of the dangerous condition that caused her fall. We do not agree.
We review a summary judgment order using the same standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Therefore, we apply the standard articulated in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), requiring a court, when making
a determination whether there exists a "genuine issue" of material fact that precludes summary judgment . . . 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 factfinder to resolve the alleged disputed issue in favor of the non-moving party.See also Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Davis v. Devereux Found., 209 N.J. 269, 286 (2012). This standard permits the court to consider "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, supra, 142 N.J. at 533 (citation omitted).
Although we must view the evidence in the light most favorable to the non-moving party, "[c]ompetent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (citation omitted), certif. denied, 220 N.J. 269 (2015). "[B]are conclusions in the pleadings without factual support . . . will not defeat a meritorious application for summary judgment." Id. at 606 (quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)).
"[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). The first element, duty, is a question of law to be decided by the trial judge. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). "[N]o bright line rule [] determines when one owes a legal duty to prevent a risk of harm to another." Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000). The imposition of a duty depends on the interplay of many factors, including: (1) the relationship of the parties; (2) the nature of the attendant risk; (3) the ability and opportunity to exercise care; and (4) the public interest in the proposed solution. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). "Ultimately, [New Jersey] Supreme Court cases repeatedly emphasize that the question of whether a duty exists is one of 'fairness' and 'public policy.'" Wlasiuk, supra, 334 N.J. Super. at 666-67 (quoting Hopkins, supra, 132 N.J. at 439).
Here, plaintiff argues that defendants had a duty to warn her of a dangerous condition that existed on their property of which they were admittedly aware. Specifically, plaintiff points to the positioning of defendants' car in their driveway, so as to at least partially block pedestrian travel over the sidewalk, and the icy conditions that existed in the area. However, plaintiff offers scant legal authority applicable to residential homeowners and social guests, as opposed to commercial landowners and business invitees, to support her position. Additionally, her reliance on Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), to impose liability on defendants here, is clearly misplaced.
The law in New Jersey is well-settled that a residential property owner is generally immune from liability for accidents resulting from naturally-caused conditions of public sidewalks abutting the property. Luchejko v. City of Hoboken, 207 N.J. 191, 195, 211 (2011); Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34, 38 (App. Div. 1995). Historically, no property owner in New Jersey had a duty under the common law to maintain the sidewalks on their lands that abutted public streets. Yanhko v. Fane, 70 N.J. 528, 537 (1976). Similarly, property owners had no duty at common law to clear the snow and ice from public sidewalks. See Davis v. Pecorino, 69 N.J. 1, 4 (1975).
In 1981, our Supreme Court revised the common law and imposed a duty only on commercial property owners or occupants to maintain public sidewalks adjacent to the property. Stewart, supra, 87 N.J. at 157. Two years later, the Court held this common law duty of commercial property owners applies to snow and ice removal. Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983). Later, the Court extended the duty to a non-profit private school. Brown v. St. Venantius Sch., 111 N.J. 325, 338 (1988). In 2011, however, the Court declined to extend the duty to a condominium association. It held in Luchejko, supra, 207 N.J. at 201-11, that the distinction between residential and commercial properties was engrained in our tort law and, accordingly, declined to abrogate this distinction.
In the present case, it is undisputed that defendants used the property as their long-time residence. The trial court correctly determined the nature and purpose of their ownership to be primarily residential and not commercial, notwithstanding that Tom Meade worked from home. Accordingly, to the extent that plaintiff's injuries may have occurred when she fell on ice on defendants' sidewalk, defendants, as residential landowners, are not liable for such injuries. Luchejko, supra, 207 N.J. at 204.
Plaintiff further argues that defendants' car blocked the sidewalk, in violation of a local ordinance, and that this constitutes further evidence of negligence. However, the record does not indicate that defendants were ever charged with violating any such ordinance. In any event, the breach of such ordinance does not render defendants liable to plaintiff. "Breach of an ordinance directing private persons to care for public property" is "remediable only at the instance of the municipal government . . . and [] there shall be no right of action to an individual citizen especially injured in consequence of such breach." Id. at 200 (quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 353 (E. & A. 1902)).
Moreover, the duty of care that a landowner owes third persons "is generally governed by the status of the third person — guest, invitee, or trespasser — particularly when the legal relationship is clearly defined." Robinson v. Vivirito, 217 N.J. 199, 209 (2014) (citing Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004)). "Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee." Sussman v. Mermer, 373 N.J. Super. 501, 504 (App. Div. 2004); Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43 (2012). Our Supreme Court has pointed out the following distinction between business invitees and social guests:
An 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. A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit.
[Hopkins, supra, 132 N.J. at 433.]
A homeowner owes a duty to protect business invitees from foreseeable harm. Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534-35 (App. Div.), certif. denied, 151 N.J. 77 (1997). This duty requires exercise of "'reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered.'" Rowe, supra, 209 N.J. at 44 (quoting Hopkins, supra, 132 N.J. at 434). In contrast, however, it is equally well-settled that "[a] host's duty to a social guest includes an obligation to warn of a known dangerous condition on the premises except when the guest is aware of the condition or by reasonable use of the facilities would observe it." Tighe v. Peterson, 175 N.J. 240, 241 (2002) (emphasis added) (holding that defendant did not have a duty to warn the plaintiff, a twenty-nine-year-old who had previously used defendant's pool at least twenty times, not to dive in the shallow end of an above ground pool).
We conclude that the motion judge correctly determined that plaintiff was a social guest. It is undisputed that plaintiff visited defendants' home earlier that day, and observed the location of the car that was at least partially blocking the sidewalk. Plaintiff admitted at her deposition that she did not walk around the car during her first visit because she "felt it was safer to walk in the street." The car remained in its same location during plaintiff's second visit. However, she could offer no explanation why she then chose to navigate around it. Under the circumstances, the danger she encountered in doing so was self-evident and, therefore, not actionable. Consequently, even should plaintiff be able to establish she fell on defendants' property, the judge properly entered summary judgment for defendants.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION