Opinion
DOCKET NO. A-3540-12T2
07-23-2014
ANDY AND TONYA COOK, Plaintiffs-Appellants, v. KELMAR CONSTRUCTION COMPANY, INC., PRODUCER ASSOCIATES PLUS AGENCY, INC., LIBERTY MUTUAL, PSE&G, Defendants, and DAMAZIO ARAUJO DASILVA, Defendant-Respondent.
Hunt, Hamlin & Ridley, attorneys for appellant (Ronald C. Hunt, of counsel and on the brief). Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (John G. O'Brien, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2765-09.
Hunt, Hamlin & Ridley, attorneys for appellant (Ronald C. Hunt, of counsel and on the brief).
Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (John G. O'Brien, on the brief). PER CURIAM
Plaintiffs appeal the granting of summary judgment to defendant Damazio Araujo DaSilva (DaSilva), the contract purchaser of a newly constructed house (the house) in Irvington, where plaintiff Andy Cook was injured when a gas explosion occurred on the property in the early morning on October 19, 2007 - the same date on which title to the property was passed to DaSilva later in the afternoon. As a consequence of his injuries, Cook filed suit against a host of individuals and entities, all of which obtained "dismissals" of the claims against them, according to appellants' counsel. This appeal concerns only the claims against DaSilva.
Briefly, the facts are these:
Kelmar Construction Company, Inc. (Kelmar) owned the subject property upon which it built the house. Kelmar obtained a certificate of occupancy from Irvington in April 2007, and in October 2007 entered into a contract to sell the house to DaSilva. On October 17, 2007, Kelmar's owner, Antonio Pimienta, signed a closing authorization letter and granted limited power of attorney to a representative in order to facilitate the closing. Closing on the sale was scheduled to take place at 1:30 p.m. on October 19, 2007.
During construction of the house, Kelmar had hired Rottweiler Kingdom Security (RKS), a company owned by Cook, to provide security until the house was sold. As Cook explained, RKS placed dogs in vacant homes "to keep thieves out."
Cook placed a dog at the house sometime in 2006, and the dog remained there for approximately one year. When work on the house had been completed for the day, Cook would drop the dog off at the house, and thereafter remove the dog the following morning. However, at some point prior to the closing, Cook moved the dog to the basement of the house where it was confined and unable to move throughout the unoccupied structure. According to Cook, Kelmar instructed him to confine the dog to the basement "because they didn't want the [new] wooden floors to get messed up."
Approximately one week before the accident, Pimienta and Mario Goncalves, a Kelmar employee, met DaSilva at the house to conduct a walk-through inspection. Everything at the house was found to be in order. At that time, DaSilva requested Kelmar to keep the dog at the house until the following Saturday, when DaSilva planned to move into the house.
On the morning of the incident, Cook arrived at the house with his son, and nephew, Curtis Boykins, sometime around 7 a.m. to check on the dog. Upon their arrival, Cook noticed the garage door was forced open and he and Boykins smelled gas. Cook then called Pimienta, who told him to remain at the property and wait for Pimienta, or someone else from Kelmar to arrive.
Goncalves arrived at the house with three other Kelmar employees within a few minutes of Cook's call. Cook, Goncalves, and the three other Kelmar employees then entered the house, and less than a minute after they entered, at approximately 7:30 a.m., the explosion occurred. The explosion leveled the building, and the five men were trapped under the burning rubble. Pimienta received a phone call from one of his trapped employees, Herculano Araujo, who told Pimienta that the "house exploded." Pimienta then attempted to call Goncalves, but received no answer. Pimienta called Araujo back, who informed him that the house was still burning and to call the fire department. Pimienta finally dialed 911.
When the police and firemen arrived at the house, they extracted Cook and the three other Kelmar employees from the rubble, all of whom were severely burned. Goncalves died of his injuries.
Law enforcement agencies investigated the explosion, and determined that unknown persons stole copper piping from the home, and in the process, dislodged a gas line. This caused a gas leak, and then an unknown event caused the leaking gas to explode.
Cook argues that the motion judge improperly granted summary judgment and that "fact issues" existed. He argues further that, "DaSilva having taken on the duty to control [the] premises, clearly failed to exercise the significant care required under the circumstances" and that having "insisted the security dog be kept in a confined area" created the "causative factor of the stolen pipes and the resulting leak."
Our review of a motion court order granting summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). Our analysis requires that we first determine whether the moving party has demonstrated the absence of any genuine disputes of material fact, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the parties opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
To defeat a motion for summary judgment in a negligence action, a plaintiff must make a prima facie showing of a duty owed, breach of that duty, causation, and damages. Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). Moreover, "[a] plaintiff's self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion." Pressler & Verniero, Current N.J. Court Rules, comment 2.3.1 on R. 4:46-2 (2014) (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002)).
We have closely examined the record and find no material factual issues which would warrant denial of summary judgment. Even assuming that it was DaSilva who asked that Cook's guard dog be kept in the basement, nothing in that request remotely suggests that DaSilva voluntarily "took control" of responsibility for security at the property, or indeed, usurped Cook's own contractual responsibility to maintain canine security on the premises. Indeed, Cook called Kelmar the morning of the explosion — not DaSilva — to advise that the house had apparently been broken into. Given these circumstances, there is no factual support for any "duty" on the part of defendant to safeguard Cook.
Further, it is unclear what precisely would be the duty Cook argues that the defendant breached in this circumstance. It is Cook's obligation to identify the duty he claims was breached. Kulas v. Public Service Electric & Gas Co., 41 N.J. 311, 316 (1964). "The existence of a duty is a question of law decided by the courts, taking into account issues of fairness and policy, the foreseeability of injury to others arising from defendants' conduct, the nature of the risk posed by that conduct, the relationship of the parties, and the impact on the public of the imposition of a duty of care." Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 304 (App. Div. 2004) (citing Snyder v. American Assoc. of Blood Banks, 144 N.J. 269, 292-93 (1996)). Moreover, "[t]here can be no actionable negligence if defendant did not violate any duty to the injured plaintiff." Lombardo v. Hoag, 269 N.J. Super. 36, 48 (App. Div. 1993).
Consequently, plaintiffs must first establish that DaSilva owed Cook a duty of care. Plaintiffs assert that this duty is grounded in premises liability. However, this bald assertion is not supported in the law.
Under New Jersey law, "landlords and business owners should be liable for foreseeable injuries that occur on their premises." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997). This duty arises out of the fact that landlords and business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Ibid.
The owner of property, however, generally is not liable for injuries caused by defects for which it had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia v. Glass Garden, Inc., 175 N.J. 559, 563 (2003); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. In addition, "[n]egligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). "[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (internal quotation marks omitted).
On the facts before us, we perceive no basis to support the imposition of liability upon DaSilva for Cook's injuries, which occurred on property owned by Kelmar. Dasilva had no notice that trespassers had disabled a gas line, or that Cook entered the property knowing it had been vandalized.
Further, DaSilva did not own or control the house at the time of the explosion. While it is true that the deed was executed prior to the explosion, the actual transfer of title had not yet occurred. Thus, legal ownership and beneficial ownership had not yet merged. Thus, there is no basis to extend the duty of a property owner to DaSilva in this circumstance. As we have noted, however, even if he were viewed as the property owner at the time, he had no notice that the property was vandalized, that gas was leaking or that Cook had entered the property under those conditions.
The remainder of Cook's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION