Opinion
DOCKET NO. A-4133-12T4
07-17-2014
ALICE CAMACHO, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., Defendant-Respondent, and JOSE RONE, Defendant.
Joworisak & Associates, LLC, attorneys for Appellant (Karim Arzadi, on the brief). Parker, Ibrahim & Berg LLC, attorneys for respondent (Anthony Del Guercio and Megan J. Strickland, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3171-11.
Joworisak & Associates, LLC, attorneys for Appellant (Karim Arzadi, on the brief).
Parker, Ibrahim & Berg LLC, attorneys for respondent (Anthony Del Guercio and Megan J. Strickland, on the brief). PER CURIAM
In this premises liability action, plaintiff appeals from an order granting summary judgment to defendant Wells Fargo Bank, N.A. and dismissing her personal injury claim, and a subsequent order denying her motion for reconsideration. We have reviewed the record in light of the parties' contentions and applicable law, and we affirm.
I.
We derive the following facts from the record, construed in a light most favorable to plaintiff as the non-moving party on summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On August 15, 2009, plaintiff was injured on the premises located at 450 Livingston Street in Elizabeth (premises). The premises consisted of a two-family home. At the time, she was waiting to pick up her daughter, who was there visiting a resident. Plaintiff was injured when a railing, located on the left-side porch, gave way beneath her while she was leaning on it, causing her to fall and sustain injuries. The subject-porch is located at the center of the left side of the premises and services the exterior entrance to just the first floor apartment, which is completely disconnected from the front porch, which services the entrance to the second floor apartment.
At the time of the incident, the first floor unit was occupied by the premises' former owner, defendant Jose Rone. The premises were owned by "Certificateholders of Carrington Mortgage Loan Trust, Series 2007-FRE1 Asset-Backed Pass-Through Certificates" (Trust), for which defendant Wells Fargo, N.A. (defendant) is trustee. In that capacity, defendant acquired title to the premises eleven days prior to the incident through a sheriff's deed, after foreclosing on Rone's mortgage.
On April 27, 2011, plaintiff filed an action against defendant and Rone, alleging they were negligent in maintaining the premises. Plaintiff alleged that defendant had notice of the railing's defect based on two inspections conducted at its request. The first inspection took place on May 7, 2009, after the Trust obtained a writ of execution against the premises, in connection with the preparation of a "Broker Price Opinion" (BPO). The BPO and plaintiff referred to the inspection as a "drive by inspection." As to the property's condition, the BPO stated:
Rone was later dismissed as a defendant for lack of prosecution. R. 1:13-7.
"Property is good for an investor or 1st time buyer. Property looks in fair condition, every window covered with black garbage bag, front porch in need of major repair or replacement, high crime area[.]
. . . .
Depending on the condition of the interior of the property price might decrease. [T]here is a "STOP WORK" order on
the front door . . . front porch is in need of major repair[.]
The BPO also stated that maintenance was needed for every category of repairs as indicated within the report, and suggested that the premises be sold "as is." Finally, it rated the premises as "Good." The report also included photographs of the premises, and comparable properties.
The report is akin to an appraisal.
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Three days before defendant acquired title to the premises, it conducted a second inspection (occupancy inspection) to determine if there were occupants; and, if so, to find out their timeframe for vacating the premises as it wanted to "take possession and change the locks on the property," which it had not done up to that point. The information obtained from the inspection advised that the premises were occupied by only Rone's relatives. On or about August 11, 2009, defendant sought to remove the occupants by applying to the court for a writ of possession, which it obtained on September 9. By September 1, however, the occupants had already left the premises.
Defendant later obtained a temporary certificate of occupancy (TCO) on December 29, 2009. The TCO required that "All repairs must be completed in order to acquire a clear [Certificate of Occupancy]."
Defendant moved for summary judgment on February 8, 2013, contending that the prior owner was liable, and that defendant had not breached any duty of care to plaintiff. Plaintiff opposed the motion and argued that she was a "guest" at the premises and, as such, defendant "owed her a duty to be warned of any dangerous condition of which the owner had actual knowledge and of which the guest is unaware." Plaintiff relied upon the contents of the two inspections as the basis for establishing that defendant had notice of the defect in the specific railing that caused her injury. Plaintiff did not offer any expert reports identifying any specific defects in the subject railing or porch. She did not offer any certifications from witnesses describing the defect or how long it had been in existence, or indicating whether any notice of the defect had been given to defendant.
The court granted defendant's motion. It first found that defendant owed plaintiff a duty of care because it was the owner of the premises when she was injured, even though it was not in possession of the premises at that moment. The court explained,
As a matter of law [defendant] could be held responsible . . . based on the facts in this case, because they took title before . . . the accident occurred. So, at the time of the accident they are property owner. The fact is they could have gotten there ten days earlier and boarded up the place and threw everybody out, they didn't.
The court then addressed whether there was any evidence that defendant had knowledge of the specific defect by first considering whether the alleged dangerous condition was "latent," meaning "undiscoverable except by extraordinary investigation," Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984), or "patent," meaning obvious. See Szeles v. Vena, 321 N.J. Super. 601, 607 (App. Div.), certif. denied, 162 N.J. 129 (1999). According to the court, plaintiff's only evidence of defendant's knowledge was the BPO. Citing that report, the court found that defendant only had notice from the "Drive by" inspection that the front porch needed repair, but not the side porch "because it's a completely different area of the house." As the court further explained,
What if she had tripped . . . walking . . . into the kitchen over a bad floor board, would the fact that there needs repair on the front porch be inputted[sic] to the knowledge that . . . the floor board is bad? I don't think so. . . . [T]here is nothing to tell me if it was . . . a patent defect, which I don't think it is, I mean cause it sounds like [plaintiff] didn't realize there was a bad railing. I mean if there was a patent defect, if someone had said you know this railing was missing, then you could argue well, through agency their inspector should have seen it, should have noticed it. That's not the case either. . . . [T]his is a railing, it was intact, it was there, she leaned against it, it fails. So, it's obviously — appears to me that it's almost un-controvertible that it's a latent defect.The court was ultimately satisfied that defendant did not have the requisite notice of an unsafe condition and therefore could not be held liable to plaintiff as a matter of law.
But they don't have any notice of that area having any problem whatsoever.
I don't think that there's anything that a jury could reasonably infer that they knew about this railing or this deck or anything else like that. No evidence that anybody looked at it, no evidence anybody discovered it, no evidence that the resident that was foreclosed on ever told them about it, no evidence that any of the people doing inspections ever . . . could see it. . . . I don't even have a report that says it was obvious. Frankly, . . . I just don't see any . . . facts upon which a jury could conclude that there might be negligence.
Plaintiff subsequently moved for reconsideration, and argued, for the first time, the theory of res ipsa loquitur. The court refused to grant reconsideration on that basis, as plaintiff had not raised the claim in the first instance. Moreover, the court said the theory was inapplicable, because plaintiff failed to demonstrate exclusive control, or that the dangerous condition was caused by defendant's negligence.
On appeal, plaintiff argues that the trial court erred in finding that defendant was not liable to plaintiff when the record indicates that it had notice of the premises' condition. She further contends that the trial court erred in denying her motion for reconsideration, and in finding res ipsa loquitur inapplicable.
II.
"[T]he propriety of the trial court's [summary judgment] order is a legal, not a factual, question." Fernandez v. Nationwide Mut. Fire Ins. Co., 402 N.J. Super. 166, 170 (App. Div. 2008), aff'd o.b., 199 N.J. 591 (2009) (quoting Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2008)). It is therefore subject to our de novo review. NAACP of Camden Cnty E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430-31 (App. Div. 2011), appeal dismissed, 213 N.J. 47 (2013).
We apply the same standard as the trial court in reviewing summary judgment orders, viewing the evidence in a light most favorable to the non-moving party. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). The movant 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).
The scope of premises liability is typically predicated on the status of the claimant at the time of injury: whether they are a trespasser, licensee, or business invitee. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43-44 (2012); see also Snyder v. I. Jay Realty, 30 N.J. 303, 311-12 (1959) ("[T]he ascertainment of that status is an essential preliminary to the application of the particular standard of care to be exercised by the land occupier."). "Those common law classifications bear with them established duties on a sliding scale; 'as the legal status of the visitor improves, the possessor of land owes him more of an obligation of protection.'" Rowe, supra, 209 N.J. at 43-44 (quoting Prosser and Keeton on Torts § 58, at 393 (5th ed. 1984). Therefore, "[t]he duty of care owed to a [licensee] is greater than that owed to a trespasser, but less than that owed to a business visitor." Parks v. Rogers, 176 N.J. 492, 497 (2003).
As the Court summarized in Rowe, supra,
The duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser. To the social guest or licensee, the landowner owes a greater degree of care. Although the owner does not have a duty actually to discover latent defects when dealing with licensees, the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware.
Only to the invitee or business guest does a landowner owe a duty 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.
[209 N.J. at 44 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)) (citations omitted).]
In her brief opposing summary judgment, plaintiff initially claimed she was a "guest, as the occupants were known to be on the premises and permitted by the defendant[; and that] as such she was owed a duty to be warned of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware." She did not claim to be an injured invitee, warranting the imposition of liability based on an obligation to inspect for latent defects. See Gonzalez v. Safe & Sound Security Corp., 185 N.J. 100, 121 (2005).
However, plaintiff now also argues that defendant's liability arose because it had knowledge of the defect from the BPO and occupancy inspection, and that they created a duty to inspect the side-porch's railings because the inspections found the structure to be generally in need of repair. In support, plaintiff argues that
[t]he condition of the porch and the railing in this case was a defective condition thatWe disagree, as plaintiff's argument is legally incorrect and not supported by any facts in the record.
was reasonably foreseeable if defendant had performed its duty to maintain and inspect. . . . The defendant was aware of the condition, as the condition of disrepair and need for repair of the premise,[sic] was known for a while and should have corrected the condition when they took control on August 4, 2009 and failed to do so.
Plaintiff was not a business invitee to the premises to whom defendant owed a duty to maintain the premises in a safe condition and make reasonable inspections. She was there visiting Rone or his family, whose ownership interest, and therefore right to possession, had been terminated by the foreclosure. Chase Manhattan Bank v. Josephson, 135 N.J. 209, 225-26 (1994). At best, plaintiff was a gratuitous licensee, a neither she nor the occupants she was visiting provided any benefit to defendant. Compare Taneian v. Meghrigian, 15 N.J. 267, 274-75 (1954) (duty to warn licensee of concealed danger known to possessor), with Rowe, supra, 209 N.J. at 43 (citing Lordi v. Spiotta, 133 N.J.L. 581, 585 (Sup. Ct. 1946)) ("The invitee comes by invitation, express or implied, generally for some business purpose of the owner."). As previously noted, "[a]lthough the owner does not have a duty actually to discover latent defects when dealing with licensees, the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware." Rowe, supra, 209 N.J. at 43 (quoting Hopkins, supra, 132 N.J. at 434).
The trial court implicitly and correctly applied this standard of care. It correctly found that nothing in the BPO or occupancy inspections revealed any defective condition as to the side-porch railing that triggered defendant's obligation to warn plaintiff of a dangerous condition or make repairs. The BPO's comments as to the general condition of the premises or the front porch's condition could not have given defendant notice of the condition of the railings that allegedly caused plaintiff's injury. The occupancy inspection was not intended to, nor did it, provide any details as to the condition of the building. We are therefore satisfied that the record did not reveal any genuine issues as to any material facts and that the court properly granted summary judgment to defendant.
III.
Plaintiff also argues that the trial court erred in denying her motion for reconsideration, by refusing to consider res ipsa loquitur and finding that the theory was inapplicable after it was first raised in defendant's reply brief in support of its summary judgment motion.
We review the decision on a motion for reconsideration for abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). As a preliminary matter, new theories of liability are not properly raised in a motion for reconsideration, Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996); Lahue v. Pio Costa, 2 63 N.J. Super. 575, 598 (App. Div.), certif. denied, 134 N.J. 477 (1993), and there is no merit to plaintiff's belated claim that res ipsa loquitur applied, particularly after she never raised it in opposition to the summary judgment motion.
Moreover, the trial court rightly determined that res ipsa loquitur was inapplicable. Plaintiff argues that she is entitled to an inference under the doctrine of res ipsa loquitur that defendant's failure to inspect the subject railing caused her accident. "Res ipsa loquitur is ordinarily impressed only where the injury more probably than not has resulted from negligence of the defendant." Anderson v. Somberg, 67 N.J. 291, 299 (1975). The doctrine is applicable in circumstances where the injury's "occurrence . . . ordinarily bespeaks negligence." Bornstein v. Metro Bottling Co., 26 N.J. 263, 269 (1958). The doctrine represents a rule of circumstantial evidence. Roper v. Bloomfield, 309 N.J. Super. 219, 229-30 (App. Div.), certif. denied, 156 N.J. 379 (1998). It "permits an inference of [a d]efendant's negligence," Buckelew v. Grossbard, 87 N.J. 512, 525 (1981), where plaintiff has shown that, 1) the injury itself "ordinarily bespeaks negligence", 2) the instrumentality causing the injury was within the defendant's exclusive control, and 3) there is no indication that the plaintiff contributed to his own injury. Khan v. Singh, 200 N.J. 82, 91 (2009).
In this case, plaintiff failed to demonstrate the first prong, that the injury "ordinarily bespeaks negligence," ibid., meaning "that it is causally related to the actions or failure to act of" defendant. Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 401 (2005). "[T]he critical question in determining the applicability of res ipsa loquitur . . . depends on the scope of defendant's duty of care." Brown, supra, 95 N.J. at 289-90. Even assuming that we are incorrect and defendant did have an obligation to inspect the left-side porch railing, plaintiff offered no evidence of what the defect in the railing was that could have been found and repaired, that a reasonable inspection would have revealed a need to repair the railing, the type of required inspection or, based on the nature of the defect and its duration, defendant had a reasonable opportunity to make the needed repair. See Brown, supra, 95 N.J. at 280, 291. Without producing any such "competent evidence that 'reduces the likelihood of other causes so that the greater probability of fault lies at defendant's door,'" Szalontai, supra, 183 N.J. at 400 (quoting Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996)), plaintiff could not invoke "[r]es ipsa loquitur [as it] is not a panacea for the less-than-diligent plaintiff or the doomed negligence cause of action." Ibid.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION