Opinion
A-1089-21
12-09-2022
WILLIAM DAVES and GREGORY EURE, Plaintiffs-Appellants, v. GPS HOSPITALITY, d/b/a BURGER KING, Defendant-Respondent.
John J. Pisano, attorney for appellants. Sweeney and Sheehan, PC, attorneys for respondent (John Michael Kunsch, on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted October 18, 2022
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0334-20.
John J. Pisano, attorney for appellants.
Sweeney and Sheehan, PC, attorneys for respondent (John Michael Kunsch, on the brief).
Before Judges Sumners and Susswein.
PER CURIAM
This personal injury case arises from an incident at a Burger King drive-thru operated by defendant, GPS Hospitality, during which the tires of plaintiffs' vehicle fell into a hole. Plaintiffs, William Daves and Gregory Eure, appeal from the November 23, 2021 order issued by Judge Michael F. O'Neill granting summary judgment to defendant. The judge rendered a ten-page written opinion concluding plaintiffs failed to show defendant was on notice there was a weakening of the drive-thru surface that could cause a dangerous condition. Plaintiffs had stipulated to the assertion, "[t]here is no evidence that this condition existed before the incident or that [defendant] had any notice of the alleged dangerous condition." After carefully reviewing the record in light of the governing legal principles, we affirm.
I.
On September 5, 2020, while plaintiffs were exiting the drive-thru of defendant's Burger King, a piece of the pavement collapsed. Plaintiffs' front wheel fell into the hole. Daves drove forward, causing the rear wheel to fall into the hole. Daves went inside the restaurant to report the "sinkhole." Daves testified that a female employee told him, "that's a pothole." Daves and a male employee went outside, saw the hole, and observed a truck fall in and drive out of the hole. Police thereafter shut down the drive-thru.
Photographs taken after the incident show that, aside from the newly formed hole, the pavement was in good condition. Daves testified at his deposition that he did not see a hole in the pavement before his vehicle's tires fell into it. He also testified that he did not "notice any defects in the driveway" during his last visit to the drive-thru, approximately one week earlier. Daves "guess[ed]" that the hole developed as he drove over the top of it. However, he also testified that after the incident, he encountered an unidentified woman in the parking lot who told him, "I said something to [defendant] the other day about that because there was a pothole."
Plaintiffs argued at the summary judgment hearing that a jury could find the sinkhole "was a result of a steady long-standing deterioration," which put defendant on "constructive notice" of the dangerous condition. Judge O'Neill concluded to the contrary, stating, "[t]here is no evidence before the court from which a reasonable jury could conclude that the defendant was on constructive notice of the alleged dangerous condition -- a sinkhole." The judge found "[p]laintiffs' contention, that the sinkhole developed as 'a result of a steady longstanding deterioration,' is unsupported by any competent evidence in the record" and would require speculation by the jury. Plaintiffs did not present expert testimony regarding the development of the sinkhole.
Judge O'Neill also noted, "[p]laintiff Daves' sworn deposition testimony contradicts any suggestion that defendant was on notice of a long-standing problem." The judge added that, even assuming there was some pre-existing depression or pothole where the sinkhole developed, plaintiffs failed to present competent evidence showing an inspection or repair of that defect would have prevented development of the sinkhole. Finding that plaintiffs offered no competent evidence to support their claim of constructive notice, Judge O'Neill granted defendant's motion.
Plaintiffs raise the following single contention for our consideration:
POINT I
THE ORDER GRANTING SUMMARY JUDGMENT TO THE DEFENDANT SHOULD BE REVERSED BECAUSE THE DOCTRINE OF CONSTRUCTRIVE NOTICE ESTABLISHES THE PLAINTIFFS' RIGHT TO TRIAL
II.
As plaintiffs were business invitees, defendant owed them "a duty of reasonable care to guard against any dangerous conditions on [its] property that [it] either knows about or should have discovered." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). The duty of due care to invitees "requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing O'Shea v. K. Mart Corp., 304 N.J.Super. 489, 492-93 (App. Div. 1997)). "[A]n invitee seeking to hold a business proprietor liable in negligence '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.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting Nisivoccia, 175 N.J. at 563).
We review orders granting summary judgment de novo and apply the same standard as the trial court. Lee v. Brown, 232 N.J. 114, 126 (2018). Summary judgment will be granted if "there is no genuine issue of material fact and 'the moving party is entitled to a judgment or order as a matter of law.'" Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); See also R. 4:46-2(c).
To determine whether there are genuine issues of material fact, we 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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
"An issue of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Factual issues of an unsubstantial nature are insufficient to preclude the granting of summary judgment. Brill, 142 N.J. at 540. Brill further instructs that if the evidence in the record "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (citation omitted).
III.
Applying these legal principles to the present facts, we conclude Judge O'Neill properly granted summary judgment in defendant's favor. As we have already noted, plaintiffs stipulated to defendant's contention that "[t]here is no evidence that this condition existed before the incident or that [defendant] had any notice of the alleged dangerous condition." Furthermore, although defendant had a duty to conduct reasonable inspections of its property, see Hopkins, 132 N.J. at 434, plaintiffs presented no evidence to support their assertion that a reasonable inspection would have led defendant to discover the defect. Despite plaintiffs' claims that the driveway showed signs of deterioration "such as the cracks and depressed areas around the hole shown in the [post-incident] photographs," those photographs show a driving surface that, aside from the hole, is in good condition. The only visible defects are those immediately surrounding the hole.
We reject plaintiffs' contention that defendant was obligated to inspect the earth beneath pavement that appeared to be undamaged. It simply is not reasonable to expect business owners to undertake such rigorous efforts to discover potential defects. See Brown v. Racquet Club of Bricktown, 95 N.J. 280, 293 (1984) ("[D]efendant's failure to make . . . an extraordinary inspection does not constitute negligence or permit an inference of negligence.").
We likewise reject plaintiffs' argument that the trial court improperly relied on Chatman v. Hall, 128 N.J. 394 (1992), superseded by statute on other grounds, N.J.S.A. 59:3-1(c). In that case, our Supreme Court found that a large hole that had been reported at least a year before the relevant accident created a reasonable inference that the defendants had notice of the danger. Id. at 400, 418. We agree with Judge O'Neill that the facts in Chatman are readily distinguishable. Plaintiffs' argument distinguishing the legal framework underlying Chatman does not render the Supreme Court's notice analysis inapplicable.
Finally, we address plaintiffs' contention that the trial court erred by not finding defendant was on constructive notice by reason of the statements of two unidentified women who both purportedly mentioned a pre-existing pothole. We acknowledge that evidence must be viewed in the light most favorable to the party opposing summary judgement. Davis, 219 N.J. at 406. But it also is well-established that inadmissible hearsay "cannot be considered evidence in the summary judgment record." Chicago Title Ins. Co. v. Ellis, 409 N.J.Super. 444, 457 (App. Div. 2009). The out-of-court statements attributed to the two women are clearly hearsay, and plaintiffs offer no exception that might make them admissible. Such unreliable evidence is insufficient to overcome a motion for summary judgment. Ibid.
Plaintiffs did not reference these statements in their initial opposition to defendant's summary judgment motion. Judge O'Neill remarked, "[p]resumably, plaintiff[s] recognized that the reference to a pothole is of little consequence in light of plaintiff's testimony that he saw no defect in the parking lot."
To the extent we have not addressed them, any remaining arguments raised by plaintiffs lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.