SLIP AND FALL IN A MULTIPLE DWELLING UNIT DURING A SNOW AND ICE STORM

CURTIS MCCANTS and CLARINE MCCANTS,  v. MACK KENNEDY, ANNETTE KENNEDY, and CLEVON MCCANTS,   Decided February 28, 2019

APPELLATE REVIEW OF THE TRIAL JUDGE’S DECISION TO GRANT SUMMARY JUDGEMENT

Submitted by Personal Injury Lawyer, Jeffrey Hark.

In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates “no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law.” R. 4:46- 2(c); see Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 329-30 (2010); see also Brill, 142 N.J. at 540. We review issues of law de novo and accord no deference to the trial judge’s conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

THIS IS A SLIP AND FALL, WHAT MUST THE PLAINTIFF PROVE?  I JUST WROTE A SIMILAR BLOG ABOUT A SUPER MARKET PATRON WHO FELL RIGHT NEXT TO HER CAR AT A SUPER MARKET DURING A SNOW STORM.  THE QUESTION ON APPEAL WAS, WHAT WAS THE SUPERMARKET’S OBLIGATION DURING THE STORM?

“To sustain a cause of action for negligence, a plaintiff must establish four elements: ‘(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'” Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 585 (2008)). “It is generally plaintiff’s burden to prove not only that defendant was negligent, but also that defendant’s negligence was a proximate cause of the injuries and damages suffered.” O’Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264, 274 (App. Div. 2003) (citing Paxton v. Misiuk, 34 N.J. 453, 463 (1961)).

“The test of negligence is ‘whether the reasonably prudent person at the time and place should recognize and foresee an unusual risk or likelihood of harm or danger to others.'” Scully v. Fitzgerald, 179 N.J. 114, 125-26 (2004) (quoting Trentacost v. Brussel, 82 N.J. 214, 222 (1980)). Summary judgment may be appropriate if there is no legal basis for finding the existence of a duty or where defendants were not the proximate cause of plaintiff’s injuries. Foreseeability as a determinant of duty must “be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury.” Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502-03 (1997). In the context of the duty determination, foreseeability is the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care. [Id. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)).]

In other words, “the probability of injury to another is the basis for the creation of a duty to avoid such injury, and therefore the test of negligence is whether “a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to the plaintiff or to those in a like situation would probably result.” Kuzmicz v. Ivy Hill Park, 147 N.J. 510, 533 (quoting Hill, 75 N.J. at 144). Accordingly, “[f]oreseeability in the proximate cause context relates to remoteness.” Clohesy, 149 N.J. at 503.

In the context of proximate cause, on the other hand, foreseeability “relates to ‘the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff’ reasonably flowed from defendant’s breach of duty.” Ibid. (quoting Hill, 75 N.J. at 143). As to the former, it is well-settled that a landlord has a duty to exercise reasonable care to keep the premises in a reasonably safe condition to guard against foreseeable dangers arising from the use of the premises. Coleman v. Steinberg, 54 N.J. 58, 63 (1960); Scully, 179 N.J. at 118. Foreseeability of an unreasonable risk of harm to the reasonable person is the crucial factor in determining whether a duty exists. Trentacost, 82 N.J. at 223; Jensen v. Schooley’s Mountain Inn., Inc., 216 N.J. Super. 79, 81 (App. Div. 1987) (citing Caputzal, 48 N.J. at 75). In other words, a landlord’s duty arises when foreseeable harm exists that falls within the landlord’s control. Scully,179N.J. at 123 (citing Braitman v. Overlook Terrace Corp., 68 N.J. 368, 382-83 (1975)).

Thus, our courts have recognized a duty to exercise reasonable care to prevent foreseeable danger arising out of numerous circumstances. See e.g., id. at 126-27 (recognizing a duty to guard against the risk of fire); Trentacost, 82 N.J. at 223 (recognizing a duty to ensure “adequate security against foreseeable criminal conduct”); Coleman, 54 N.J. at 63-64 (recognizing a duty of reasonable care with respect to the maintenance and operation of heating systems); Skupienski v. Maly, 27 N.J. 240, 248 (1958) (recognizing a duty of reasonable care in the maintenance of private sidewalks); Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div. 1973) (recognizing a duty of reasonable care in the maintenance of plumbing and electrical equipment).

III.

We first address plaintiffs’ argument that there are genuine issues of material fact precluding summary judgment in favor of Kennedy.

N.J.A.C.5:10- 6.1 requires owners of multiple dwelling units to be “responsible at all times for keeping all parts of the premises occupied . . . clean and free of infestation and hazards to the health or safety of occupants and other persons in or near the premises[,]” and

N.J.A.C. 5:10-1.6(c) requires owners to uphold “at all times . . . the safe maintenance of the building . . . .”

N.J.A.C. 5:10-6.4(a) requires that the  exterior of the premises and all structures thereon shall be kept free from all nuisances, insanitary conditions, and any hazards to the safety or health of occupants . . . and any of the foregoing conditions shall be promptly removed and abated by the owner or operator. It shall be the duty of the owner or operator to keep the premises free of such conditions which include, but are not limited to the following: Holes, excavations, breaks, projections, obstructions, litter, icy conditions, uncleared snow and excretion of pets and other animals on paths, walks, driveways, parking lots and parking areas and other parts of the premises. Holes and excavations shall be filled and repaired, walks and steps replaced and other conditions removed where necessary to eliminate hazards or insanitary conditions with reasonable dispatch upon their discovery . . . . [N.J.A.C. 5:10-6.4(a)(4) (emphasis added).]

Construing the facts in the light most favorable to plaintiffs as the non- moving parties, we disagree with the motion judge that there are no genuine issues of material fact. We note the conflicts in the expert reports on several key facts. Stoyack opined that Kennedy had a duty to maintain the exterior steps, clear ice and snow, ensure that the bricks and mortar joints were structurally sound and properly repaired or reconstructed. Her failure to fulfill this responsibility “was a blatant violation” of New Jersey maintenance regulations according to Stoyack. In contrast, Suchecki opined that “[t]here was no significant time period which anyone could have cleaned the ice from the steps prior to [McCants’] reported slip and fall[,]” that there was an undetectable, latent defect with the brick, and that Stoyack did not substantiate his opinions.

When there are competing expert opinions, summary judgment is inappropriate because “a trial court should never decide on its merits a dispute on which a rational jury could go either way.” Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.2 on R. 4:46-2 (2019); See Davin, LLC v. Daham, 327 N.J. Super. 54, 71 (App. Div. 2000) (holding that summary judgment on a legal malpractice claim should have been denied when there were conflicting expert certifications). In light of the factual dispute arising from the conflicting expert reports, summary judgment was inappropriate.

IV.
We next address plaintiffs’ argument that the motion judge improperly expressed his own personal opinions as to masonry. In his oral decision, the judge stated: ‘I’ll give it to you, if in fact he stepped on it and the whole brick fell out [be]cause the mortar wasn’t there or whatever, I’ll give you that, that clearly there’s a – – there’s an issue with regard to prior notice existing. But if he steps down on a brick that – – previously was fine, and the end of the brick cracks off itself, as [t]he [c]ourt notes for the record, these stairs, apparently the treads, if you will, of the stairs, to a certain extent, the bricks do stick out slightly as – – I’m familiar with masonry, stairs are built that way, that the tops – – the treads, if you will are – – are fanned out along this particular set of stairs, and that they – – occasionally there’s – – the edges of the brick – – the edge of the tread, when he would step on, sticks out slightly, [be]cause I think that’s . . . not uncommon.

In Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000),6 our Supreme Court reversed the trial judge’s granting of summary judgment because he imposed “his own personal standard” to determine the merits of the case. There, the trial judge “failed to apply the appropriate summary judgment standard . . . [and] never determined that no rational fact-finder could render a judgment in favor of [plaintiff].” Ibid. Here, the motion judge imposed his personal knowledge and experience of brick masonry instead of weighing the factual and expert testimony and evidence, and he found that a jury could not render a judgment in favor of plaintiffs.

“The ‘judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The question of whether a duty was breached, foreseeability, and proximate cause, are “peculiarly within the competence of a jury.” Hambright v. Yglesias, 200 N.J. Super. 392, 396 (App. Div. 1985). Notwithstanding these principles, the motion judge reached the merits of the action by interjecting his personal opinions, warranting reversal.

It is fundamental, black-letter law that where there are disputes of material fact, summary judgment is inappropriate. See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50 (2012). Since we conclude that plaintiffs raised material factual disputes that made summary judgment inappropriate, we reverse and remand. We also vacate the February 26, 2018 order and reinstate plaintiffs’ complaint. Plaintiffs’ remaining arguments do not need to be addressed in light of our decision.