June 25, 2007
GWENDOLYN BAKER AND MICHAEL BAKER, HER HUSBAND, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
JOSHUA M. YORKER, NINA YORKER, DEFENDANTS-RESPONDENTS, AND VIOLA P. STALLINGS, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND MOUNT LAUREL MUNICIPAL UTILITIES AUTHORITY, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3086-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2007
Before Judges Lisa and Holston, Jr.
Plaintiff, Gwendolyn Baker, was injured when she fell in the grassy strip between the sidewalk and curb in front of the home of defendants, Joshua and Nina Yorker. Plaintiff's foot became lodged in the uncovered shaft, about three inches in diameter, of the pipe housing a water shut-off valve. The cover to this shaft was missing. The incident occurred as plaintiff was approaching her intended destination, the home of defendant, Viola P. Stallings, which was located next door to the Yorkers. The water shut-off valve, although located in front of the Yorkers' property, controlled the flow of water into Stallings' home. The parties stipulated that the grassy strip in which the valve was located was owned by Mount Laurel Township. The water system was operated by the Mount Laurel Municipal Utilities Authority (MUA).
Plaintiff sued the Yorkers, Stallings, and the MUA, for her injuries.*fn1 After discovery was conducted, all defendants moved for summary judgment. The motion judge granted summary judgment in favor of the Yorkers and the MUA. The judge denied Stallings' motion, concluding that there was "a sufficient basis to impose a duty upon the user of the water services and that duty [was not] obviated by the fact that [Stallings] didn't know that it was her responsibility" or "did not own the real property where the valve was located."
The case went to trial against Stallings. The jury found that Stallings was not negligent, and an order was entered memorializing the jury's verdict of no cause for action.
Plaintiff appeals from the order granting summary judgment in favor of the Yorkers and from the no cause verdict in favor of Stallings. She does not appeal from the summary judgment in favor of the MUA. Stallings cross-appeals from the order denying her summary judgment motion. We affirm on the appeal. We therefore find it unnecessary to address Stallings' cross-appeal.
The incident occurred on January 26, 2002. Plaintiff was invited to Stallings' home for social purposes. Stallings' home is located in a town home community, and is one of six attached homes in a building. Each home is serviced by a driveway that opens to the street. Plaintiff parked in the street. As she walked towards Stallings' home, she stepped up onto the curb and the grassy area between the curb and sidewalk in front of the Yorkers' home. That is where she fell, when her foot became lodged in the open water shutoff valve pipe.
The MUA's rules and regulations required the MUA to exercise control and be responsible for various portions of its water system, including water mains located in public right-of-ways and MUA easements. The regulations further provided that "[a]ll other service lines, laterals, valves, equipment, facilities and appurtenances are the responsibility of the customer or owner. The customer or owner is responsible for compliance with all applicable laws, ordinances, codes, rules and regulations for the construction, installation and maintenance of the same." An MUA official testified at trial that the MUA "periodically through newsletters, notifies the homeowners of those responsibilities and . . . phone numbers to call for problems."
The unrefuted evidence in this case is that Stallings was unaware that the water valve located in the grassy strip in front of the Yorkers' home regulated the flow of water into her home or had anything to do with her.
Years before plaintiff's fall, Nina Yorker noticed that the lid was missing. She called the MUA and was informed that there would be a charge of about $50 for its employees to come out and replace the lid. The MUA representative suggested that she go to Home Depot, purchase a lid for a few dollars, and install it herself. She followed that advice. Over the ensuing years, according to Nina Yorker, neighborhood children would remove the lid from time to time and use it as a hockey puck. Sometimes they replaced it; sometimes they did not. She purchased about three of these lids over the years for this shaft.
After plaintiff's fall, Nina Yorker purchased and installed another lid. In the course of its investigation of this incident, MUA officials noted that the type of lid Nina Yorker was purchasing and installing was a dome type lid meant for a sewer line, rather than a flat lid with a protruding pentagonal or hexagonal nut designed for a water valve pipe.
In entering summary judgment in favor of the Yorkers, the motion judge found that no material facts were in dispute and they could not be liable because "plaintiff injured herself on a condition that was neither caused by [the Yorkers] nor created by [the Yorkers]. Indeed, the condition -- the defective property condition was in the same condition as it had been prior to the [Yorkers] ever having made any attempts whatsoever." The judge also observed, "I'm not sure that [the Yorkers] ever had any duty in the first place to repair simply by virtue of the fact that it was not her pipe, it was her neighbor's pipe."
In the trial against Stallings, the jury was instructed on negligence and social guest liability. The judge declined plaintiff's request to charge nuisance.
We first address plaintiff's arguments pertaining to the Yorkers. Plaintiff argues that the motion judge applied the wrong legal standard in granting summary judgment in favor of the Yorkers. Plaintiff claims that the court erred in concluding that as long as the Yorkers left the uncovered shaft in the same condition as before Nina Yorker attempted to repair it, there could be no liability. Plaintiff contends that once the Yorkers voluntarily performed repairs they were under an obligation to use reasonable care. According to plaintiff, the Yorkers did not use reasonable care because they repeatedly applied the wrong type of lid. Plaintiff further argues that the Yorkers owed her a legal duty because property owners owe the same standard of care to a neighbor's guests as they do their own. Plaintiff asserts that this duty extends to the grassy strip between the sidewalk and curb. According to plaintiff, public policy and fairness dictate that a duty of care was owed in this case.
We do not agree with these arguments. Where one voluntarily undertakes to render a service, in the absence of a legal obligation, he or she is bound to render such service in a reasonably careful manner. Nilsson v. Abruzzo, 107 N.J.L. 327, 330 (E. & A. 1931). Failure to exercise reasonable care will result in liability. Model Jury Charge (Civil), § 5.12; see also, McHugh v. Hawthorne Bldg. & Loan Ass'n, 118 N.J.L. 78, 80-81 (Sup. Ct. 1937). Generally, it is up to a jury to decide whether a defendant's conduct breached the standard of reasonable care and constituted negligence. Campbell v. Hastings, 348 N.J. Super. 264, 272 (App. Div. 2002). But if a rational factfinder could not find negligence when the evidential materials are viewed most favorably to the plaintiff, submission of the issue to a jury is inappropriate and summary judgment should be granted to the defendant. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "In most of the cases finding liability, the defendant has made the situation worse, either by increasing the danger, by misleading the plaintiff into the belief that it has been removed, or by depriving him of the possibility of help from other sources." Prosser on Torts § 56 (Keeton ed., 5th ed. 1984).
Here, as the motion judge correctly noted, "the water main was in its original state of disrepair at the time of the accident." Even if Nina Yorker was unreasonable in her attempts to repair the water valve, her attempts did not create a new element of danger or hazard which was a proximate cause of plaintiff's fall. The water valve was in the same condition at the time of plaintiff's fall as it was before Nina Yorker attempted to repair it. Therefore, because she did not make the situation worse or increase the danger, liability should not be imposed.
Furthermore, Nina Yorker's attempts to repair the water valve were not the proximate cause of plaintiff's fall and consequent injuries. A defendant's negligence "is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause." Daniel v. Gielty Trucking Co., 116 N.J.L. 172, 174 (E. & A. 1936). It was undisputed that at the time of plaintiff's fall the cover had been removed. The covers were often removed by the neighborhood children who would use them as hockey pucks. Removal of the lid by others was a sufficient intervening cause that superseded Nina Yorker's attempts to repair the water valve. See id. at 174-75.
We are unpersuaded by plaintiff's argument that the Yorkers owed her a duty as Stallings' social guest. "The traditional common law approach to landowner or occupier tort liability toward a person who has been injured because of a dangerous condition on private property is predicated on the status of the person on the property at the time of the injury." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). Generally, a landowner owes "a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related." Ibid. "A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit." Ibid.
Plaintiff concedes that "there is no reported case that holds that a property owner owes the same standard of care to a neighbor's guests as they do to their own." Rule 2:6-9 places the burden on the parties to provide the law for the court. "Paucity of such reference suggests a like paucity of authority helpful to the party." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).
In cases where the legal relationships between the parties are not within the traditional categories of the common law the inquiry should be "whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just." Hopkins, supra, 132 N.J. at 438. Determining what is fair and just requires 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." Id. at 439.
Principles of fairness dictate that the Yorkers did not owe plaintiff a duty of care. Plaintiff was neither a social guest nor trespasser on the Yorkers' property. The property was owned by the Township. Plaintiff was a social guest of Stallings. There was no relationship between the parties. Also, the opportunity and ability of a homeowner to exercise care for all its neighbor's guests would be extremely burdensome. No public interest would be served by imposing such a duty on homeowners.
Finally, plaintiff's argument that the Yorkers owed her a duty under the theory of sidewalk liability is misplaced. Plaintiff relies on Bedell v. Saint Joseph's Carpenter Soc'y, 367 N.J. Super. 515 (App. Div. 2004), for the proposition that sidewalk liability extends to the grassy strip between the sidewalk and curb. In Bedell, the plaintiff was injured when he tripped over the roots of a tree stump that were located in the grassy strip while attempting to reach the sidewalk. Id. at 518. We imposed a duty of care against the abutting commercial property owner because of the "character of the unpaved plot as part of the sidewalk" and "considerations of fairness and public policy." Id. at 525.
We explained that "commercial landowners are responsible for maintaining abutting sidewalks in reasonably good condition and are liable to injured pedestrians for their negligent failure to do so." Id. at 519. The rationale for imposing the duty is "the benefits of sidewalks to abutting commercial owners." Id. at 520 (quoting, Nielsen v. Lee, 355 N.J. Super. 373, 376 (App. Div. 2002), certif. denied, 176 N.J. 73 (2003)). We decided that an extension of this duty was fair because "the grassy strip here is also likely used by pedestrians as an immediate means of ingress and egress to the sidewalk." Id. at 524. "[S]uch a use would be necessitated by the fact that the strip is uninterrupted, runs the entire length of the street and must be crossed by a pedestrian in order to reach the sidewalk." Ibid.
The facts here are materially distinguishable from those in Bedell. The Yorkers are not commercial property owners, but rather residential landowners. The same policy reasons for imposing sidewalk liability in Bedell do not apply here. An abutting property owner is not liable for the condition of a sidewalk unless he negligently constructs or repairs it or directly uses or obstructs the sidewalk. Deberjeois v. Schneider, 254 N.J. Super. 694, 698 (Law Div. 1991), aff'd, 260 N.J. Super. 518 (App. Div. 1992) (noting that no liability would be imposed on the property owner if the tree in question had been located in the sidewalk area, such as in the grass strip between the sidewalk and the street, because it would have been the responsibility of the municipality).
Also, the character of the sidewalk here is different from that in Bedell. In this case, the grass strip is interrupted by each homeowner's corresponding driveway. The neighborhood consists of a building in which six town home units are located. The grass strip is not uninterrupted nor does it run the entire length of the street. It is not necessary to cross the grass strip in order to reach the sidewalk.
We find no error in the motion judge's conclusion that a jury could not reasonably find that Nina Yorker, having voluntarily attempted to repair the uncovered shaft, did not use reasonable care in doing so and, even if she did not (by using the wrong cover), her actions were not a proximate cause of plaintiff's fall. She did not change the condition that existed before she voluntarily attempted the repair, and removal of the cover that she placed there was by others, beyond her control, thus breaking any chain of causation that could have flowed from her conduct.
With respect to Stallings, plaintiff argues that the jury instructions were incorrect. Plaintiff argues that the jury should have been instructed that the water valve belonged to Stallings. Plaintiff contends that Stallings was responsible for maintaining the water shut-off valve, even if she did not know it was hers, because she received the benefit of obtaining water from the MUA. Plaintiff also argues that the jury should have been instructed on a residential property owner's liability for a nuisance.
We reject these arguments. The only evidence in this case regarding "ownership" or "control" was that the open shaft contained the valve that provided water service to Stallings' home. The jury was properly instructed as to whether Stallings had knowledge of this dangerous condition thus requiring her to repair it or warn plaintiff. An instruction that the valve "belonged" to Stallings was not warranted. The valve was the property of the MUA. It was located in a grassy strip owned by the Township. The court did not err in declining to instruct the jury that the valve belonged to Stallings.
Finally, the trial judge correctly declined to charge nuisance. There was no evidence to even remotely suggest that Stallings engaged in any intentional activity to cause a dangerous condition. This case was pled and tried as a negligence action and was properly submitted to the jury on that basis, seeking a determination of whether Stallings breached a duty of reasonable care which proximately caused plaintiff's injury. In situations where an alleged nuisance results from negligent rather than intentional conduct, "a plaintiff is generally required to show that the defendant was negligent." Ruiz v. Kaprelian, 322 N.J. Super. 460, 472 (App. Div. 1999). There is no basis in this case for departure from that general rule.