Opinion
DOCKET NO. A-1955-05T5
01-12-2007
DENISE ESPINAL, Plaintiff-Appellant, v. 60 CEDAR LANE, LLC, Defendant-Respondent, and MARIA SANTOS, Defendant.
Matthew P. Pietrowski argued the cause for appellant (Levinson Alexrod, attorneys; Alex R. DeSevo, on the brief). Richard E. Mahoney argued the cause for respondent (Skrod & Baumann, attorneys; Mr. Mahoney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5982-04.
Matthew P. Pietrowski argued the cause for appellant (Levinson Alexrod, attorneys; Alex R. DeSevo, on the brief).
Richard E. Mahoney argued the cause for respondent (Skrod & Baumann, attorneys; Mr. Mahoney, on the brief).
PER CURIAM
Plaintiff Denise Espinal appeals from the grant of summary judgment dismissing her complaint against defendant 60 Cedar Lane, LLC, the owner of the premises where she sustained injuries. The Law Division judge rejected plaintiff's design defect theory of liability. We affirm.
The facts are not in dispute. Plaintiff was employed by D cor, Inc. D cor conducted its business operations out of premises it leased from defendant located at 60 Cedar Lane in Englewood, New Jersey. The premises consisted of a building and an adjacent parking lot. D cor was the sole commercial tenant in the building. D cor entered into a triple net lease with defendant. A triple net lease is a lease that imposes upon the commercial tenant responsibility for "maintaining the premises and for paying all utilities, taxes and other charges associated with the property." N.J. Indus. Props., Inc. v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985). On the morning of August 28, 2002, plaintiff was struck by a vehicle driven by a co-worker, defendant Maria Santos, as she stood with other employees in the D cor parking lot drinking coffee purchased from a nearby food truck parked in an area where vehicular traffic was prohibited. She sustained serious injuries, which included a fractured pelvis and an above-the-left-knee amputation.
According to plaintiff, this area served as the usual gathering spot for the D cor employees because of its proximity to D cor's personnel entrance located on the west side of the building. The exterior of the personnel entrance consisted of one step that led into the building as well as into the open parking lot. There were no sidewalks or curbs separating the parking lot from the street; nor were there pedestrian barriers that created a pedestrian-only zone around the personnel entrance. The entire area surrounding the personnel entrance served as a drop-off spot for vans transporting D cor employees to work.
Plaintiff's design theory is based upon her claim that given the design of the parking lot and how it was used, defendant had a duty to install pedestrian barriers in the area in front of the personnel entrance. Subsequent to plaintiff's accident, pedestrian barriers were installed, and plaintiff contends this is proof, without the necessity of any expert testimony, that the premises were negligently designed.
The court found that plaintiff offered no evidence of any design defect, other than the installation of the barriers, which the court ruled would be inadmissible to establish negligence. The court noted further that there was no expert report pointing to any defect in the design of the building or parking lot and there was also no evidence that defendant designed and/or constructed the building. In granting defendant's motion, the court concluded that there were no genuinely disputed issues of fact sufficient to survive summary judgment.
On appeal, plaintiff contends there is a factual dispute as to the level of control over the building defendant retained, notwithstanding the fact that D cor was the only commercial tenant in the building. Plaintiff urges that since defendant maintained an office and supplies in the building and its president and sole shareholder, Richard Engel, was regularly present on the premises because he was also the president of D cor, defendant retained a non-delegable duty to maintain the premises free of dangerous conditions.
In reviewing summary judgment orders, we apply the same standard employed by the trial court in disposing of summary judgment motions. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004); Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). We must decide 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. . . . If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
Thus, "the essence of the inquiry" is "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." Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
Plaintiff does not dispute that under the triple net lease agreement, D cor is responsible for maintaining the premises and making all necessary repairs, but urges that because defendant "kept its files, its checks, and its account books in [an] office" and also because defendant had an agent "who performed work for defendant at that building," part of the property remained under the defendant's possession and control. Thus, it is plaintiff's position that a jury could reasonably conclude that defendant breached its duty owed to plaintiff when it failed to provide protective barriers along the means of ingress and egress from the building onto a busy parking lot without providing pedestrians any protection from vehicular traffic.
We initially observe that plaintiff did not raise this argument before the motion judge. Plaintiff's argument was limited to liability premised upon a design defect:
THE COURT: You don't disagree with the argument of 60 Cedar Lane, that the lease is a triple net lease, and that the tenant is responsible for maintenance and upkeep. Your arg
[PLAINTIFF'S COUNSEL]: That's correct.
THE COURT: Your argument is that there's a design defect in the construction of the building ab initio. What evidence?
You didn't address that argument basically.
[DEFENSE COUNSEL FOR 60 CEDAR LANE]: No, your Honor, because there was never any expert report served indicating that there was ever a design defect or construction defect.
And only to correct the record, D cor and 60 Cedar Lane, L.L.C., did not build this building. They purchased the building from other people and there was a history of who they purchased it from. Some of them, the primary people that are still involved in the company, but before that it had been purchased from other parties beyond that.
THE COURT: Would it be fair to say, and this would be subject to Mr. Harrell's check, that 60 Cedar Lane was not the entity that constructed this building?
[DEFENSE COUNSEL FOR 60 CEDAR LANE]: That is correct.
[PLAINTIFF'S COUNSEL]: At the time of the lease 60 Cedar Lane was the property owner. It was responsible for the defect in the property, and while we don't have an expert report.
THE COURT: What do you have? Do you have any evidence?
[PLAINTIFF'S COUNSEL]: Your Honor
THE COURT: That there's a design defect.
[PLAINTIFF'S COUNSEL]: It's a subsequent remedial measure in being proved, to prove negligence.
Negligence against the employer or the lessee. It's being offered to show a design defect.
THE COURT: How can that be evidential? What subsequent remedial measure, putting in ballasts?
[PLAINTIFF'S COUNSEL]: After the accident.
THE COURT: That's the evidence?
[PLAINTIFF'S COUNSEL]: Yes. That's the evidence.
Plaintiff, therefore, has presented a new argument on appeal. "The presentation of new issues on appeal 'is repugnant to the spirit of our practice which contemplates that, except in extraordinary situations, as where public policy or jurisdiction are involved, a party shall make his points in the court of first instance before urging them as grounds on appeal.'" State v. Mahoney, 226 N.J. Super. 617, 626 (App. Div. 1988) (quoting State v. Daquino, 56 N.J. Super. 230, 233 (App. Div.), certif. denied, 30 N.J. 603 (1959), cert. denied, 361 U.S. 944, 80 S. Ct. 407, 4 L. Ed. 2d 363 (1960)).
Nonetheless, for purposes of viewing the evidence in the light most favorable to plaintiff, as we must do under Brill, supra, we assume that defendant retained control over a portion of the
premises. Even with this assumption, a landlord's retention of control of a portion of a building otherwise controlled by its sole tenant does not impose upon the landlord a non-delegable duty of reasonable care owed to third parties to maintain and repair the premises where the lease agreement unquestionably imposes this obligation upon the tenant. McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521 (App. Div. 1996).
D cor's duties under the lease were clearly articulated. Clause Eight of the triple net lease specifically states that "[t]he [l]andlord shall not be responsible for the loss of or damage to property or injury to persons occurring in or about the demised premises . . . ." Further, Clause Five of the agreement indicates that the obligation to maintain and repair the premises would be upon D cor, specifically delineating that this obligation included the costs of any erections, alterations, additions, and improvements. Clearly, these clauses unquestionably place responsibility for maintenance and/or repair upon D cor. Id.
These provisions do not end our analysis. Also contained in Clause Five of the agreement is language that prohibits D cor from making "any alterations, additions or improvements to said premises without the prior written consent" of defendant. Clause Eighteen requires defendant's approval of all plans and specifications prior to commencing any work to "improve the property or render it more usable for [D cor's] purposes." Given the reservation of this right to defendant, the triple net lease does not relieve defendant of liability premised upon a design theory. Geringer v. Hartz Mt. Dev. Corp., 388 N.J. Super. 392, 403 (App. Div. 2006). Thus, liability based upon a design defect remains a viable theory of liability notwithstanding the triple net lease. Nonetheless, plaintiff, in order to survive summary judgment, as a threshold matter, was obligated to establish a prima facie case of defendant's involvement in the design and/or construction of the exterior premises. Fiduccia v. Summit Hill Constr. Co., 109 N.J. Super. 249 (Cty. Ct. 1970). The motion judge specifically found that nothing in the record pointed to defendant's construction and/or design of the building or exterior parking lot area. At oral argument, it was in fact represented to the motion judge that defendant did not design or construct the building. That representation was not challenged by plaintiff at that time nor thereafter, despite the court's invitation to plaintiff's counsel to do so.
In addition, even assuming defendant had constructed and/or designed the premises, nothing in the record raises a factual dispute that a defect existed because there were no pedestrian barriers near the entranceway to the building. Plaintiff argues that the installation of pedestrian barriers following her accident is proof that the area outside of the personnel entrance was defective. We do not agree.
It is well settled that post-accident repairs undertaken to prevent recurrence of accidents are not admissible as proof of negligence or as an admission of negligence. N.J.R.E. 407. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 402 (2005) (quoting Perry v. Levy, 87 N.J.L. 670, 672 (E. & A. 1915) "[E]vidence of changes and repairs made subsequently to the injury, or as to precautions taken subsequently, to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence [because] the effect of declaring such evidence competent would be to inform a defendant that if he makes changes or repairs, he does it under a penalty [that such remedial measures] operate[] as a confession that he was guilty of a prior wrong." While such evidence may be admissible to prove some other fact in issue, plaintiff
proffered no other basis for consideration of this evidence. No other evidence bearing upon any design defect was presented to the court. The motion judge therefore properly concluded, under Brill, supra, that there were no genuinely disputed issues of fact from which a jury could reasonably conclude that defendant, in the first instance, owed a duty of care to plaintiff, McBride, supra, and, secondly, even if such a duty were owed, that defendant breached that duty.
Affirmed.
Plaintiff's claims against Maria Santos were dismissed with prejudice following settlement.