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Monaco v. Hartz Mountain Corporation

February 09, 2004

LUIGI MONACO AND FRANCESCA MONACO, HIS WIFE, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
HARTZ MOUNTAIN CORPORATION, DEFENDANT-RESPONDENT, AND ABC CORP., DEF CORP. AND GHI CORP., (FICTITIOUS DESIGNATIONS INTENDED TO DESIGNATE UNKNOWN ENTITIES RESPONSIBLE FOR PROPER INSTALLATION, MAINTENANCE AND REPAIR OF A CERTAIN SIGN AND/OR SIGNPOST), DEFENDANTS, AND CITY OF NEWARK, DEFENDANT AND CROSS-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This appeal considers the liability of a commercial landowner in a case in which a traffic sign, situated on the landowner's sidewalk, became dislodged and caused injury to an invitee.

On April 18, 1996, plaintiff was employed by the Newark Board of Education, which was a tenant in a building owned by defendant Hartz Mountain Corp. As plaintiff exited the building, a gust of wind dislodged a municipal parking sign that was installed on Hartz's sidewalk. The sign became airborne and struck plaintiff on the side of his head, causing injury. Plaintiff filed suit against Hartz and the City for damages arising from the injuries.

Hartz and the City moved for summary judgment. Hartz argued that it had no legal duty with respect to the sign and the City argued that it was not on notice of a dangerous condition. Plaintiff's expert concluded that the street was a virtual wind tunnel heavily trafficked by large trucks that in the past had knocked down nearby signs causing repairs to be made by the City. Because this sign was embedded in concrete, the expert opined that it could not be dislodged by wind unless it had been previously damaged. The engineer also noted testimony by witnesses who claimed that the sign had been in a damaged condition for an extended period of time and testimony by the property manager for Hartz, who advised that he personally inspected the sidewalks around the building several times a week. The expert opined that a minimally competent inspection would have revealed the defect in the sign that injured plaintiff and that building and signage codes placed responsibility for inspection and maintenance of the sidewalk and sign on both Hartz and the City. The deposition testimony of the Manager of the Division of Traffic and Signals of Newark acknowledged that under the State Uniform Traffic Manual, the City is required to maintain an inspection schedule for traffic signs and has the sole responsibility for maintaining and repairing those signs because the City owns them. Due to limited funds, however, he indicated that the City has a procedure to inspect only stop signs. Other signs are not regularly inspected and the City relies on reports from property owners.

The trial court granted the City's motion for summary judgment, concluding that a jury could not find that the City had constructive notice of the damaged sign. The court denied Hartz's motion for summary judgment, however, concluding that Hartz owed plaintiff, an invitee, a duty to maintain its land in a reasonably safe condition and either to notify the City to have the sign repaired or to give warning to people who might actually be harmed.

The case against Hartz went to trial. Several witnesses testified that they had observed damage to the sign prior to the accident. Plaintiff's expert testified that the sign previously had been struck by a vehicle, causing damage to the base of the sign where it was embedded in the concrete and looseness between the pole and the concrete. He concluded that a minimally competent inspection would have revealed the defect. Portions of Hartz's property manager's deposition were read into the record, including that Hartz installed the sidewalk and was responsible for its maintenance, and that he regularly inspected the sidewalks and signs. However, he denied inspecting this sign.

At the close of plaintiff's case, Hartz moved for a directed verdict, arguing that it had a duty with regard to the sidewalk, but not with regard to a sign that was owned, maintained, installed and repaired by the City. Hartz further asserted that it did not have notice that the sign was defective. The trial court granted Hartz's motion for directed verdict, concluding that the law does not impose on a landowner any duty to inspect or notify another person about problems with a structure that the landowner does not own or maintain and that is not within the landowner's control.

The Appellate Division affirmed, finding that Hartz had no legal duty with respect to a traffic sign owned and installed by the City. The court reversed the grant of summary judgment entered in favor of the City based on what it viewed as a genuine issue of material fact regarding constructive notice.

HELD: A landowner owes a duty to its invitees to maintain its land in a safe condition, to inspect, and to warn of hidden defects whether within its power to correct or not.

1. In respect of plaintiff's claims against Hartz, the trial court erred in ruling that Hartz had no legal duty with respect to a sign it did not own. That issue was resolved in plaintiff's favor on Hartz's motion for summary judgment. Because that ruling was the law of the case, a court of equal jurisdiction had no right to"reverse" in the absence of substantially different evidence at a subsequent trial, new controlling authority, or specific findings regarding why the judgment was clearly erroneous. None of these conditions was satisfied. (Pp. 15 - 16).

2. A motion for directed verdict must be denied if reasonable minds could differ after accepting as true all the evidence that supports the party opposing the motion and according that party all reasonable inferences. Here, Hartz is a commercial landowner and plaintiff was an invitee injured on Hartz's property, which is located on a street that is a virtual wind tunnel. The injury occurred on a windy day when a parking sign installed and maintained by the City flew out of a sidewalk installed and maintained by Hartz. That sign was installed to advance the interests of Hartz and its tenants. Under relevant ordinances, the sidewalk was the responsibility of Hartz. Prior to the accident, the sidewalk beneath the sign was cracked. In the months prior to the accident, witnesses noticed that the sign was damaged. Hartz's property manager acknowledged that he personally inspected the area around the scene of the accident several times per week. Plaintiff's expert testified that a minimally competent inspection would have revealed the condition at the base of the sign, and he contended that even if Hartz did not have the right to repair the sign, it had a duty to inspect and notify the City of defects in it. (Pp. 16 - 18).

3. The principles governing a commercial landowner's liability require that the landowner exercise reasonable care for an invitee's safety. That includes making reasonable inspections and taking such steps as are necessary to correct or give warning of hazardous conditions or defects actually known to the landowner. The landowner is liable to an invitee for failing to correct or warn of defects that, by the exercise of reasonable care, should have been discovered. In a long line of cases, New Jersey courts have extended a commercial landowner's duty, when warranted by the facts, to cases in which the landowner had no control over the dangerous condition and the condition was not located on its property. Traditional jurisprudence clearly recognizes that neither ownership nor control is the sole determinant of commercial landlord liability when obvious danger to an invitee is implicated. (Pp. 18 - 22).

4. In Hopkins v. Fox & Lazo, 132 N.J. 426 (1993), this Court addressed whether a real estate broker owed a duty of care to potential buyers touring a house. The Court observed that whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. Such an inquiry involves identifying, weighing and balancing several factors, including the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. (Pp. 22 - 23).

5. Here, a reversal is in order regardless whether this Court applies the classic commercial landowner liability standard or the more fluid Hopkins rule. Based on the traditional standard, Hartz had a duty to exercise reasonable care for plaintiff's safety, including making reasonable inspections of its own property and the abutting sidewalk and taking such steps as were necessary to correct or give warning of a hazardous condition. That duty existed whether the condition was or was not within Hartz's power to control. The same result flows from the application of the Hopkins standard. Hartz had the ability to, and indeed did, regularly inspect its premises and the sidewalk it had installed. Very little additionally was required of it: repair the sidewalk, give notice to the City of the damage, or take some other action to warn or otherwise protect invitees from danger. Hartz owed a legal duty to plaintiff. It was for the jury to determine whether that duty was satisfied. (Pp. 23 - 25).

6. In respect of the City's arguments, the City acknowledged responsibility for the sign and plaintiff submitted enough evidence to require a trial on the question of whether the City knew or should have known of the dangerous condition. At trial, if a jury finds that both the City and Hartz breached a duty to plaintiff, it will be required to grapple with concepts of concurrent negligence along with issues of proximate cause. (Pp. 25 - 26).

JUSTICE VERNIERO, concurring, joins in the Court's disposition in respect of the City and Hartz. He clarifies, however, that a party's duty of care turns on whether the imposition of the duty satisfies an abiding sense of basic fairness in light of considerations of public policy. Justice Verniero believes that such fairness would require that in certain circumstances a commercial landowner should be free of legal responsibility, such as when a defective condition is far removed from the party's control.

The Appellate Division's reversal of the grant of summary judgment to the City of Newark is AFFIRMED and its affirmance of the directed verdict in favor of Hartz is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in JUSTICE LONG's opinion. JUSTICE VERNIERO filed a separate concurring opinion.

The opinion of the court was delivered by: Justice Long

Argued October 20, 2003

The primary issue in this appeal centers on the liability of a commercial landowner in a case in which a traffic sign, situated on its sidewalk, became dislodged and caused injury to the landowner's invitee. The trial court and the Appellate Division held that the commercial landowner had no "legal" duty with respect to the sign that was owned and installed by the City of Newark over which the landowner had no control. We hold that those decisions, based solely on ownership and control, too narrowly conceived the obligations of a commercial landowner. Applying well-settled principles, we are satisfied that a landowner owes a duty to its invitees to maintain its land in a safe condition, to inspect, and to warn of hidden defects whether within its power to correct or not, and that it was for the jury to determine whether a breach of that duty occurred.

I.

The case arose as follows: on April 18, 1996, plaintiff Luigi Monaco was employed by the Newark Board of Education, a tenant in a building at 2 Cedar Street in Newark, New Jersey, owned by defendant Hartz Mountain Corp. As Monaco exited the building, a gust of wind dislodged a nearby municipal parking sign ("Permit Parking Only") installed on Hartz's sidewalk. The sign became airborne and injured Monaco and Frager Berry, another Board employee who was exiting behind him.

Monaco and Berry (collectively, plaintiffs) filed a civil complaint against Hartz and the City for damages arising from their injuries. Both Defendants moved for summary judgment, Hartz arguing that it had no legal duty with respect to the sign and both Hartz and Newark contending that they had no notice of a dangerous condition.

A. Pretrial Motions

The report of engineering expert Theodore Moss, based on the deposition testimony of the parties and witnesses, an inspection of the accident scene, City records and relevant building and signage codes*fn1 was presented in support of plaintiffs' motion. Moss concluded that 2 Cedar Street is a virtual "wind tunnel," surrounded by loading docks and heavily trafficked by large trucks that had in the past knocked down nearby signs while maneuvering into and out of the docks.

According to Moss, City records revealed that repairs to traffic signs on Cedar Street had been performed by the City, thus placing the City on notice that signs on Cedar Street were subject to damage and required regular inspection.

Moss's report further stated:

Street signs like the one in question are, or course, embedded into the concrete sidewalk and cannot be dislodged by the wind or fall over under normal circumstances. Such movement/failure directly and absolutely indicates that the sign/sign post had been previously damaged. In this case, available information indicates that the sign/sign post had been damaged by a vehicle and dislodged. Thereafter, the sign remained in a damaged/loosened condition for an extended period of time. Mr. Berry worked as a truck driver for the Newark Board of Education and indicates in his deposition that he regularly visited this area. He testifies that the sign and post had been bent and leaning and that the sign/sign post was "wiggling" very noticeably in the wind. He indicates that he and other truck drivers had noted and commented on the sign condition and the ongoing looseness for more than a month before this accident occurred.

In addition, Moss observed that:

The property manager for Hartz, Mr. Philip LaPlaca, maintains his office in the building and confirms that Hartz is responsible for maintenance of all common areas of the building, including the exterior sidewalk and premises. In fact, the sidewalk in question and adjoining driveway/truck bay curb cut were installed by Hartz as part of a 1990 building renovation. Mr. LaPlaca further acknowledges that Hartz is responsible for the safety of people who enter and leave the building. Initially he tells us that, in keeping with these responsibilities, he personally inspects the area at least two or three times a week and indicates that this inspection includes sidewalks and signs. We are further told that the area is inspected daily by porters/maintenance personnel working for a cleaning and maintenance contractor employed by Hartz.

[(citations omitted).]

Moss opined that a minimally competent inspection would have revealed the defect in the sign that injured plaintiffs. He concluded that wind could not have been the sole cause of the accident; rather, he stated that there must have been structural damage to the sign, eventually leading to a loose base, and finally, to the accident itself. Moss read the pertinent building and signage codes to ...


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