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Macgrath v. Levin Properties

Decided: April 27, 1992.

JANE MACGRATH, PLAINTIFF-APPELLANT,
v.
LEVIN PROPERTIES, T/A BLUE STAR SHOPPING CENTER, DEFENDANT-RESPONDENT, AND BARBARA J. SALDINO, SALVATORE CAVALLERO AND PATRICIA MCFADDEN, DEFENDANTS



On appeal from the Superior Court, Law Division, Somerset County.

O'Brien, Havey and Conley. The opinion of the court was delivered by Havey, J.A.D.

Havey

HAVEY, J.A.D.

In this personal injury action, plaintiff Jane MacGrath appeals from a summary judgment dismissing her complaint against defendant Levin Properties, t/a Blue Star Shopping Center (Levin). Plaintiff was a patron at the Blue Star Shopping Center, which is located in Watchung abutting State Highway Route 22. While walking across Route 22 where it intersects with a jug handle which feeds traffic into the shopping center, plaintiff was struck by a vehicle driven by defendant Patricia McFadden. On appeal, plaintiff argues that Levin, as the owner of the shopping center, owed plaintiff a duty to provide her with a safe means of passage across Route 22, or to warn her of the dangers inherent in traversing the highway. We agree with the trial court that no such duty exists and affirm.*fn1

The undisputed facts are as follows. The Blue Star Shopping Center abuts the north side of Route 22. On the south side of Route 22 there is a jug handle, designed to vector traffic across the highway into the shopping center, and to provide eastbound traffic with a means to make a U-turn into the westbound lane of the highway. A traffic signal device, including a pushbutton for pedestrians, controls the traffic where the jug handle intersects with the highway. The State of New Jersey owns, controls and maintains Route 22, the jug handle and the traffic signal control. The State also owns a 100-foot buffer between the north side of Route 22 and Levin's shopping center.

When the shopping center was constructed in 1961, Levin and the State acknowledged that there existed an "obstruction" to the flow of traffic on Route 22 at or near the shopping center site. The parties therefore arrived at "understandings for a joint endeavor" whereby Levin agreed to:

Cause the construction of a jug handle, as shown on a plan entitled: "New Jersey State Highway Department, Route U.S. 22 (1953) Section 11B, Turnaround West of Green Brook, Boro of Watchung, Somerset Co., Scale 1" = 30', July 1961", according to Standard New Jersey State Highway Department specifications and practice, at Owner's own cost and expense, except as hereinafter provided.

Levin also agreed to pay the monthly electrical bill for operation of the traffic signal, installed upon completion of the jug handle.

Levin has a prominent sign along the eastbound lane of Route 22 advising the public to use the jug handle for access to the shopping center. Vehicular access to the shopping center is provided by the jug handle, three entrances located off the westbound lane of Route 22, and from Bonnie Burn Road. Pedestrians have access to the shopping center by using sidewalks located on either side of an overpass connecting Park Avenue with Bonnie Burn Road. As we understand the record, there is no sidewalk along Route 22 abutting the shopping center.

According to plaintiff's answers to interrogatories, she left the shopping center on foot and proceeded to Route 22 where it intersects with the jug handle. It was plaintiff's intention to cross the highway and walk to a bus stop approximately one-half mile from the jug handle. When she "started to cross Route 22" a vehicle operated by defendant Barbara Saldino allegedly proceeded into the intersection from the jug handle through a red light and struck defendant Patricia McFadden's vehicle which was proceeding westerly on Route 22. McFadden's vehicle then struck plaintiff.*fn2

In granting summary judgment in Levin's favor the trial court found that Levin owed no duty to plaintiff since the accident occurred on Route 22, which was owned, controlled and maintained by the State. The court observed that "[t]here is no duty on the commercial land owner to maintain a safe passageway to patrons outside of their property lines, other than the case of Stewart v. 104 Wallace Street, Inc. ...


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