Opinion
DOCKET NO. A-5357-13T1
08-25-2016
MORAIBA MOLINA and HECTOR MOLINA, Plaintiffs-Appellants, v. JOSE ISMAEL ROMAN, Defendant-Respondent/Third-Party Plaintiff, v. CITY OF PERTH AMBOY, Third-Party Defendant/Respondent, and PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Third-Party Defendant.
Neal M. Unger argued the cause for appellants (Neal M. Unger, P.C., attorney; Mr. Unger and Justin F. LaPiana, on the briefs). Kenneth C. Ho argued the cause for respondent Jose Ismael Roman (Sweet Pasquarelli, P.C., attorneys; Anthony P. Pasquarelli, of counsel; Mr. Ho, on the brief). Frederick L. Rubenstein argued the cause for respondent City of Perth Amboy (James P. Nolan & Associates, L.L.C., attorneys; Mr. Rubinstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2623-12. Neal M. Unger argued the cause for appellants (Neal M. Unger, P.C., attorney; Mr. Unger and Justin F. LaPiana, on the briefs). Kenneth C. Ho argued the cause for respondent Jose Ismael Roman (Sweet Pasquarelli, P.C., attorneys; Anthony P. Pasquarelli, of counsel; Mr. Ho, on the brief). Frederick L. Rubenstein argued the cause for respondent City of Perth Amboy (James P. Nolan & Associates, L.L.C., attorneys; Mr. Rubinstein, on the brief). PER CURIAM
Plaintiffs Moraiba Molina and Hector Molina sued based on a trip-and-fall injury to Moraiba (Moraiba). They appeal a September 14, 2012 order denying leave to file a late notice of claim under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. They also appeal a June 20, 2014 order granting summary judgment to defendant Jose Ismael Roman. We affirm the 2012 order, reverse the 2014 grant of summary judgment, and remand.
I.
The following facts are undisputed, unless otherwise noted. Since 2009, plaintiffs and their children lived in a four-unit apartment building in Perth Amboy. The street front of the building faced east, and the rear of the building faced west. There was a paved east-west driveway that ran along the northern edge of the building. The driveway led to a parking lot behind the building. Roman owned the apartment building and its parking lot.
However, Roman did not own the driveway. He never told plaintiffs, and no signs indicated, that he owned the driveway. Moraiba testified it was her impression that Roman owned the driveway.
In fact, the driveway was part of the adjacent property immediately north of the apartment building. That adjacent property contained the Outerbridge Crossing bridge viaduct, and was owned by third-party defendant the Port Authority of New York and New Jersey (Port Authority).
Third-party defendant the City of Perth Amboy (City) owned Rudyk Municipal Park on the other side of the viaduct. The City leased the area where the driveway was located from the Port Authority. Under the lease, dated October 1, 1988, the Port Authority leased the City land "[f]or the parking of vehicles and as a means of ingress to and egress from Rudyk Municipal Park." The lease provided that the City should keep the premises clean and shall repair all or any part of the premises which may be damaged or destroyed. However, the City's General Supervisor of Public Works did not become aware the City had any maintenance responsibilities under the lease until after this lawsuit. He then visited the property and found a depression and several potholes that needed to be filled.
We note that, regarding the "outside paved and unpaved areas," the lease required the City to "take the same good care of the premises that would be taken by a reasonably prudent owner."
The driveway was the only way an automobile could access the rear parking lot, which was the only parking lot associated with the building. Roman and his tenants used the driveway to access the rear parking lot. The tenants normally parked their cars in the rear of the building and walked along the driveway to get to the front of the building.
On July 20, 2011, at approximately 9 p.m., Moraiba went for a walk with her husband Hector in the Park. Moraiba decided to leave the Park before Hector because it was too dark. Moraiba walked to the rear entrance of the apartment building but, before entering, decided she would go around to the front to pick up her mail. As she walked along the driveway toward the front of the building, she tripped in a crack or pothole (pothole) near the center of the driveway, on the property the Port Authority leased to the City.
As a result of her trip and fall, Moraiba suffered ankle and back injuries. She sought medical attention that night. Subsequently, she underwent a right ankle arthroscopy, got injections in her lumbar spine and facet joint, and was treated for over a year. Moraiba testified that she had continuing pain, and suffered limitations in her daily life.
According to plaintiffs, they complained to Roman several times before the accident about the condition of the driveway and the pothole; Roman had repeatedly said he would fix the pothole; and right after the accident Roman again said he would fix it. Later, Roman used cement to patch the pothole.
On April 11, 2012, plaintiffs filed a complaint against Roman. Plaintiffs alleged that Roman "owned, managed, leased, operated, controlled and/or maintained [the] residential premises," and did so negligently, causing Moraiba's injury.
On May 15, 2012, Roman's insurance company advised plaintiffs' attorney that a public entity might own the driveway, which the attorney relayed to Moraiba in mid-June 2012. On June 28, 2012, plaintiffs' attorney contacted the City Tax Assessor, who related that the land was likely owned by the Port Authority. On July 13, 2012, Roman filed an answer and a third-party complaint against the Port Authority and the City.
On July 20, 2012, plaintiffs filed a motion for leave to file a late notice of tort claim under the TCA against the City. On September 14, 2012, a motion judge denied Moraiba's motion.
The motion judge also found that the TCA did not apply to the Port Authority, and that plaintiffs' claims against the Port Authority were untimely under other statutes. Plaintiffs subsequently dismissed their appeal regarding the Port Authority.
In 2014, Roman filed a motion for summary judgment, which was granted by a different judge (the trial court) on June 20, 2014. Plaintiffs filed this appeal on July 21, 2014.
II.
We first address the timeliness of plaintiffs' appeal of the order denying their motion to file a late notice of tort claim against the City. We then consider the order's merits.
A.
Plaintiffs' July 21, 2014 notice of appeal sought to appeal the September 14, 2012 order denying their motion to file a late notice of tort claim against the City under N.J.S.A. 59:8-9. However, Rule 2:4-1(a) requires that "[a]ppeals from final judgments of courts . . . shall be taken within 45 days of their entry." Rule 2:2-3(a) specifically provides that "[a]n order granting or denying a motion to extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9, whether entered in the cause or by a separate action, . . . shall also be deemed a final judgment of the court for appeal purposes." The City argues that plaintiffs' appeal is untimely.
Plaintiffs argue that their appeal was timely because Moon v. Warren Haven Nursing Home, 182 N.J. 507 (2005), held "that the trial court order granting a plaintiff's motion to file a late notice of claim under the TCA is interlocutory and not final. It is, therefore, not appealable as of right." Id. at 511. However, in Moon, our Supreme Court "recognize[d] that there exist other policy arguments in favor of treating such orders as final for appeal purposes." Id. at 515. Accordingly, the Court "refer[red] this matter to our Civil Practice Committee for further consideration." Ibid. The Court specifically asked the Committee to consider "whether we should add orders granting a motion to file a late notice of claim to th[e] list" in Rule 2:3-3(a) of "trial court decisions that are interlocutory, but which the Appellate Division treats as final and appealable as of right." Moon, supra, 182 N.J. at 516-17.
In response to Moon, on the Committee's recommendation, the Supreme Court amended Rule 2:2-3(a) to add "[a]n order granting or denying a motion to extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9" as "a final judgment of the court for appeal purposes." R. 2:2-3(a). That amendment, "effective September 1, 2006, supersed[ed] Moon." Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 529 n.3 (App. Div. 2010). Under the amended Rule 2:3-3(a), "orders granting or denying leave to file a late tort claims notice [have been] immediately appealable under the Rules of Court as of right" since 2006. Gomes v. Cty. of Monmouth, 444 N.J. Super. 479, 486 (App. Div. 2016); see also Vitanza v. James, 3 97 N.J. Super. 516, 517-18 & nn.2-3 (App. Div. 2008). Thus, the 2006 amendment is properly and prospectively applicable here.
Although the Court in Moon, supra, had discussed policy arguments about the need to appeal orders "granting" motions for leave to file a late tort notice, 182 N.J. at 515-18, the Committee broadened the amendment to include orders denying such motions based on the following rationale. "The Committee determined that the Tort Claims Act provides for a separate action for a petition for an extension of time to file a claim against a public entity. Accordingly, it concluded that the order granting or denying that application is a final judgment for purposes of appeal," even if "the petition is not brought in a separate action as contemplated by the statute." 2006 Report of the Civil Practice Committee, 15 (Jan. 20, 2006) (citing N.J.S.A. 59:8-9) (footnote omitted).
That rationale, like the plain language of Rule 2:3-3(a), required plaintiffs to appeal the order denying their motion for leave to file a late notice of tort claim within the forty-five-day time period after that order's entry under Rule 2:4-1(a), or within a thirty-day extension under Rule 2:4-4(a), rather than waiting twenty-two months until a final judgment as to all parties. This accords with the Supreme Court's ruling in GMAC v. Pittella, 205 N.J. 572 (2011), where the Supreme Court ordered that "Rule 2:2-3(a) be further amended to permit appeals as of right from all orders permitting or denying arbitration. Because the order shall be deemed final, a timely appeal on the issue must be taken then or not at all." Id. at 586.
However, we can find no prior opinion dismissing an appeal on this basis. Moreover, the September 14, 2012 order "addressed less than all issues as to all parties," so it may not have been clear to plaintiffs that the order denying their motion regarding the City had to be appealed immediately or not at all. See ibid. Moreover, "[b]ased on the prior lack of clarity," we again follow GMAC's lead and allow the merits of plaintiffs' appeal to be addressed "so that no appeal should be dismissed because an order was improperly considered to be interlocutory." Id. at 587 & n.14.
A motion panel of this court denied a motion, brought by the State and joined by the City, to dismiss this appeal.
The trial court did not dismiss with prejudice plaintiffs' claims against the City until the June 20, 2014 order.
B.
In any event, plaintiffs' challenge to the order fails on the merits. Under the TCA, a "claimant shall be forever barred from recovering against a public entity or public employee if: a. The claimant failed to file the claim with the public entity within 90 days of accrual of the claim except as otherwise provided in N.J.S. 59:8-9." N.J.S.A. 59:8-8. Under N.J.S.A. 59:8-9, "[a] claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby." Ibid. The claimant must show "extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter."
The Supreme Court has recently emphasized that "[t]he Legislature has commanded that relief be granted only in circumstances that are extraordinary." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 158 (2013). Extraordinary circumstances is a "strict standard." Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 673 (App. Div. 1996).
Here, it is undisputed that plaintiffs' claims accrued when Moraiba was injured on July 20, 2011. However, plaintiffs waited a full year, on the last possible day, to file their motion to file a late notice of tort claim. Plaintiffs argued that their delay should be excused because they were unaware who owned the driveway, and were under the impression Roman was the owner.
The motion judge found that plaintiffs had not shown "extraordinary circumstances" as required by N.J.S.A. 59:8-9. We agree. In Leidy v. Cty. of Ocean, 398 N.J. Super. 449 (App. Div. 2008), the plaintiff was "under the impression that since the [roadway] accident occurred in Jackson [Township], the property was controlled and maintained by Ocean County," so he filed a notice of tort claim against the State, Ocean County, and Jackson. Id. at 454. However, the roadway formed the boundary with the County of Monmouth, which controlled the area where the accident occurred. Id. at 453-54. Eight months later, the plaintiff filed a motion for leave to file a late notice of tort claim against the County of Monmouth. Id. at 454. We held plaintiff could not show extraordinary circumstances, because "reasonable investigation within a reasonable time following the accident would, no doubt, have led to prompt identification of the County of Monmouth as the responsible party." Id. at 460.
The same is true here. As the motion judge found, any "confusion was due to the plaintiff's failure to confirm easily verifiable facts." It was obvious that the driveway was also adjacent to the Port Authority's bridge viaduct and near the City's park. The judge noted that "plaintiff need only have called the tax office to learn or confirm her impression of the ownership of the land," as plaintiffs' counsel later did. Thus, "the identity of the correct defendant was readily discoverable within the ninety days." D.D., supra, 213 N.J. at 153 (citing Leidy, supra, 398 N.J. Super. at 454, 457-58); see Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999).
Plaintiffs argue the identity of the proper party was "obscured" as in Lowe v. Zarghami, 158 N.J. 606, 630 (1999). There, a doctor treating Moraiba at a private hospital was in fact a public employee of a public university. Id. at 612-13, 629-30. However, "there is a fundamental difference between" the complex areas of medical employment and malpractice and the simpler issue of a fall on or near public property. See Leidy, supra, 398 N.J. Super. at 458-60 (distinguishing Lowe).
Moraiba certified "Roman always represented himself to me as the owner of the premises," but she did not claim or offer any evidence he said he owned the driveway. In any event, this was not a situation involving "dilatory conduct" by a public entity, a public "official's misrepresentation," or "thwarting by [Roman] of any efforts by [Moraiba] to discover that actual fact" of ownership. Id. at 460-61. Here, as in Leidy, "the record is barren of any reasonable efforts undertaken by plaintiff[s] during the ninety-day period to ascertain ownership, control or operation of the [drive]way." Id. at 461; accord McDade v. Siazon, 208 N.J. 463, 477-78 (2011).
Plaintiffs also did not show they filed their motion to file a late notice of tort claim within "a reasonable time." Leidy, supra, 398 N.J. Super. at 461-62. Plaintiffs did not file such a motion until a year after the accident, almost eleven months after retaining counsel on August 31, 2011, and more than two months after their counsel was warned that a public entity may own the driveway.
Finally, the motion judge noted that the public entities suffered "some prejudice" because Roman had repaired the pothole. Moraiba argues such prejudice was irrelevant unless the repairs happened after the ninetieth day. See Randazzo v. Twp. of Washington, 286 N.J. Super. 215, 220 n.2 (App. Div. 1995). However, Moraiba certified that "it was not until many months after my accident" that "Roman repaired the area of the driveway where I fell."
N.J.S.A. 59:8-9 "commits the authority to grant a plaintiff's motion for leave to file late notice 'to the sound discretion of the trial court, and [its ruling] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (citation omitted). We find no abuse here, and affirm the September 14, 2012 order.
III.
Plaintiffs also appeal the trial court's grant of summary judgment to Roman. Summary judgment must be granted if the court determines "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). "An issue of 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." Ibid. The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We "review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must hew to that standard of review.
Generally, "a landowner is 'not liable for off-premises injuries merely because those injuries are foreseeable.'" Desir, Estate of ex rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013) (quoting Kuzmicz v. Ivy Hill Park Apts., 147 N.J. 510, 518 (1997)). "That general rule protects an abutting property owner from liability for injuries that occur on a public way." Kuzmicz, supra, 147 N.J. at 518.
In Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), the Supreme Court created "[a] narrow exception impos[ing] liability on commercial landowners for injuries to pedestrians on abutting [public] sidewalks. The duty to maintain the sidewalks flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowner's ability to control the risk of injury." Kuzmicz, supra, 147 N.J. at 518 (citing Stewart, supra, 87 N.J. at 146, 158). Here, the "apartment building[] would be considered 'commercial' properties," the driveway was on public property, and "'the municipality ha[d] sufficient control over or responsibility for [its] maintenance and repair.'" See Qian v. Toll Bros. Inc., 223 N.J. 124, 135 n. 6, 138 (2015) (citations omitted).
However, as the trial court noted, Moraiba was walking on a driveway commonly used by vehicles, not an abutting public sidewalk. "A sidewalk is defined as '[t]hat part of a public street or highway designed for the use of pedestrians, being exclusively reserved for them[.]'" Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530, 534 (App. Div. 2003) (quoting Chimiente v. Adam Corp., 221 N.J. Super. 580, 583 (App. Div. 1987) (quoting Black's Law Dictionary 1238 (5th ed. 1979))). Moreover, "New Jersey courts have not imposed a duty on a property owner to maintain a public street" or "public way." Pote v. City of Atlantic City, 411 N.J. Super. 354, 365, 367 (App. Div.), certif. denied, 202 N.J. 43 (2010).
However, a commercial "landowner's liability may extend beyond the premises for activities that directly benefit the landowner" that involve crossing a public street or public way. Kuzmicz, supra, 147 N.J. at 518. "Critical to the imposition of liability is a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route." Id. at 519.
Thus, if "[c]ommercial entrepreneurs know in providing [a] parking facility that their customers will travel a definite route to reach their premises[,] [t]he benefiting proprietor should not be permitted to cause or ignore an unsafe condition in that route which it might reasonably remedy, whether the path leads along a sidewalk or across a roadway." Warrington v. Bird, 204 N.J. Super. 611, 617 (1985), certif. denied, 103 N.J. 473 (1986). Warrington held that a business which provided parking on the opposite side of the public street had a duty to enable safe passage across the street by lighting the passage or erecting warning signs. Ibid. We have similarly held that a business was liable for an invitee's death crossing a highway after parking in a lot the business knew or should have known she would use where the business had "the ability to illuminate an area where pedestrians are likely to cross and/or to provide warnings of the danger." Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 322 (App. Div.), certif. denied, 147 N.J. 263 (1996).
On the other hand, a business has no liability for a tenant's injury on a pathway on adjacent property if the business "provided its tenants with a safe exit to the public sidewalks." Kuzmicz, supra, 147 N.J. at 522. Similarly, a business is not liable for an injury on a path through adjacent public property where a public sidewalk "provided 'easy access.'" Chimiente, supra, 221 N.J. Super. at 584.
These rulings "delineate the appropriate limits of a commercial property owner's liability for off-premises injuries." Kuzmicz, supra, 147 N.J. at 518; see also Robinson v. Vivirito, 217 N.J. 199, 210 (2014); Monaco v. Hartz Mt. Corp., 178 N.J. 401, 415-16 (2004).
Here, Roman owned an apartment building, and a rear parking lot his tenants could drive to only by using the driveway. Roman admittedly knew that the tenants of his building used the driveway to drive to and from his parking lot. Indeed, there was ample evidence, albeit disputed, that he permitted and indeed instructed them to do so. It was a legitimate inference that the tenants' ability to use Roman's parking lot made Roman's apartments more desirable. This was sufficient to raise a genuine issue of material fact that Roman derived a direct economic benefit from tenants' driving on the driveway.
The trial court recognized that Roman "arguably received an economic benefit by using the driveway to access the building's parking lot." However, the court found Roman had no duty to protect tenants walking on the driveway because "there was an alternative pathway intended for pedestrian use." The court based that ruling on two findings of fact.
First, the trial court found that "[p]laintiff could have also walked inside through her apartment to the street front," and that "[t]enants of the building may walk also through the building to access the street or the rear lot." Second, the court found there was an "abutting sidewalk intended for pedestrian use." The court was apparently referring to a 3.5-foot-wide concrete alleyway on the other side of the apartment building, separating it from the building to the south.
However, a woman who lived in plaintiffs' apartment at the time of the accident testified that Roman told her to use the driveway to access the back of the apartment building because "we didn't have a key to the front part. And the other side was not available for use." She testified that they regularly walked through the driveway area to exit and enter the building through the rear entrance. Moraiba certified that "Roman usually keeps the front entrance locked" so she and the other tenants had to walk up the driveway and use the building's rear entrance. Likewise, plaintiffs testified that they used the front door "hardly ever" or "sometimes," and "always" or usually used the rear entrance and the driveway to access the street and the front of the building. Even Roman testified that the tenants frequently walked on the driveway because "they have to go around the building." There was no evidence that anyone walked between the front and back of the building using the narrow alleyway between the buildings, or that it was lit at night.
Also, plaintiffs testified that the apartment building's lights that could have illuminated the driveway were not working at the time of the accident. Hector testified he had complained about that to Roman before the accident. Plaintiffs' liability expert opined that the failure to "provide proper lighting was unreasonable," and that, "had there been adequate, functioning lighting to illuminate the rear and [driveway] side of the building, this accident may have been avoided."
Viewing all of this evidence "in the light most favorable to" plaintiffs, a jury could find that Roman had a duty to tenants walking on the driveway because Moraiba and other tenants at least primarily used the driveway to walk between the building and the street, and that the locked front entrance and unlit alleyway were not practical alternatives. Brill, supra, 142 N.J. at 523. On summary judgment, it is not for the courts to evaluate the credibility of the witnesses, "'weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Id. at 540 (citation omitted). Thus, this evidence created a genuine issue of material fact on whether Roman had a duty to at least light the driveway used by his tenants.
Accordingly, we need not consider whether Roman also had a duty to "give notice to the City of the damage" to the driveway. Monaco, supra, 178 N.J. at 419. Plaintiffs' argument that Roman was equitably estopped from denying ownership of the driveway lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
IV.
The trial court also ruled that, "even if the duty to maintain a premises extended to adjacent property, Plaintiff's claim would still lack merit because [Moraiba] had served a 'net opinion' from her proposed expert" about the cause of the pothole. However, the court's "net opinion" ruling went to a different theory of liability than the theory addressed above.
Another of plaintiffs' theories of liability was that Roman's failure to maintain his own property caused the pothole and thus the accident. Plaintiffs submitted the report of their liability expert, W. David Goldstein, a licensed building inspector and "forensic safety and code consultant." Based on information from Moraiba and his own visit to the building, Goldstein noted the absence of a downspout on the driveway side of the building. Goldstein found: "Based on a review of the photographs supplied, it appeared as though runoff from the roof may have caused the driveway in this vicinity to deteriorate as well as create a large pothole."
The trial court ruled that the finding was "at best speculative," that Goldstein gave "no engineering basis for this declaration," and that Goldstein as a building inspector was "not qualified to opine on the cause of the pothole." Based on those concerns, the court concluded Goldstein's finding was a net opinion. Nonetheless, Goldstein's finding about whether the absence of a downspout caused the pothole went to only one of plaintiffs' several theories of liability.
As set forth above, another theory of liability should have survived summary judgment, namely that Roman had a duty to his tenants to enable them to walk from the front to the back of the apartment building without tripping in the driveway's pothole, such as by providing lighting. The cause of the pothole was irrelevant to that theory. Goldstein's report supported that theory in a different way, by opining that lighting could have helped Moraiba avoid the pothole. The trial court made no finding on the validity or necessity of that opinion.
Thus, the trial court's ruling on Goldstein's finding about the downspout cannot justify summary judgment on plaintiffs' different theory that Roman failed to enable safe access by providing lighting. Therefore, we must reverse the trial court's June 20, 2014 order granting summary judgment.
Plaintiffs complain that neither party argued that Goldstein had provided a net opinion and the issue was not briefed to the trial court. As we remand in any event, we vacate the court's ruling in that order on whether Goldstein provided a net opinion, to allow the issue to be raised and briefed by the parties.
We do not criticize the trial court's decision to consider the issue. See Polzo v. Cty. of Essex, 196 N.J. 569, 584 n.5 (2008). Nor do we express any opinion on the issue. --------
Accordingly, we reverse the June 20, 2014 order granting summary judgment. We remand for further proceedings. Affirmed in part, reversed in part, vacated in part, and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION