Opinion
DOCKET NO. A-0847-16T2
11-15-2017
FRANCIS SCARDILLO, Plaintiff-Appellant, v. DAVID INNACCONE and POOL TOWN, Defendants, and PM CONTRACTORS, Defendant-Respondent.
Escandon, Fernicola, Anderson & Covelli, attorneys for appellant (Robert M. Anderson, of counsel; Scott M. McPherson, on the brief). Charles A. Little, Jr., attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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. Before Judges Fisher and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3995-13. Escandon, Fernicola, Anderson & Covelli, attorneys for appellant (Robert M. Anderson, of counsel; Scott M. McPherson, on the brief). Charles A. Little, Jr., attorney for respondent. PER CURIAM
Plaintiff Francis Scardillo appeals a summary judgment that dismissed her personal-injury complaint against defendant PM Contractors. We affirm because, as a matter of law, plaintiff could not establish PM's alleged wrongdoing proximately caused her injuries.
It is undisputed that plaintiff contracted with PM to install a new fence on her property. Although apparently disputed, we assume, as required by the applicable standard, that the parties' contract required that PM remove the old fence and that PM failed to do so. The adjoining property owner, defendant David Innaccone asked plaintiff about the removal of the old fence. Plaintiff, unaware the old fence had not been removed, pursued the matter with PM but without immediate success.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff then took matters in her own hands. With Innaccone's permission, plaintiff, her nephew, and her daughter's boyfriend, walked around the new fence and onto Innaccone's property for the purpose of removing the old fence. Plaintiff stepped into a hole on Innaccone's property, fracturing an ankle and a toe.
There is no allegation that the hole in Innaccone's property was the result of PM's performance of the contract to install the new fence. Plaintiff instead claims that PM is responsible for her injuries because she would not have entered Innaccone's property but for PM's failure to remove the old fence.
The trial judge rejected this argument and granted summary judgment in PM's favor. Plaintiff appeals, arguing the existence of a triable issue as to whether it was foreseeable that plaintiff would be injured due to PM's alleged failure to remove the old fence.
Plaintiff's claim against Innaccone was settled, and her claim against defendant Pool Town was dismissed by way of a summary judgment that has not been appealed. --------
We find insufficient merit in plaintiff's argument to warrant further discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by Judge James Den Uyl in his thorough and well-reasoned written decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION