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Pickens v. Circuit NJ Property Investment

October 29, 2007

ELEANOR A. PICKENS AND HARLEY PICKENS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
CIRCUIT NJ PROPERTY INVESTMENT; CIRCUIT CITY STORE #3104; CIRCUIT CITY STORES, INC.; THE SPORTS AUTHORITY; DOERLER LANDSCAPES, INC., DEFENDANTS-RESPONDENTS, AND WILEY'S SWEEPING AND STRIPING, DEFENDANT, AND DOERLER LANDSCAPES, INC., THIRD-PARTY PLAINTIFF,
v.
THOMAS WILEY, JR., T/A WILEY'S SWEEPING AND STRIPING, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Mercer County, Law Division, L-0140-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2007

Before Judges Graves and Alvarez.

Plaintiffs, Eleanor A. Pickens and Harley Pickens appeal from an order of summary judgment granted to defendants Circuit NJ Property Investment; Circuit City Store #3104; Circuit City Stores, Inc.; The Sports Authority (collectively Circuit City); and Doerler Landscaping, Inc. (Doerler). We affirm for the reasons set forth below.

On a very windy afternoon, plaintiff Eleanor A. Pickens fell and suffered injuries while walking across a Circuit City parking lot. She slipped on a round, prickly seedpod blown in from nearby trees. Circuit City's parking lot was maintained by Doerler, pursuant to a written contract that called for the parking lot to be kept "free of weeds and organic debris." Doerler was also required to sweep the lot a minimum of three times per week. Doerler subcontracted its sweeping responsibilities to Wiley's Sweeping and Striping (Wiley's). Wiley's employed a mechanical sweeper to clear the parking lot three times a week; this device picked up seedpods. The Circuit City manager routinely checked the condition of the parking lot on the mornings he worked, although he did not specifically recall the date of plaintiff's fall. He assumed he did so on the date in question. It is undisputed that the seedpods blew in from trees not located on Circuit City's property.

A landowner owes a duty of reasonable care to business invitees, and the responsibility extends to those conditions "'that the owner either knows about or should have discovered.'" Maisonsave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70, 85 (2005) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). This duty includes the duty to perform "reasonable inspection[s] to discover latent dangerous conditions." Hopkins, supra, 132 N.J. at 434.

As Judge Innes said when he granted summary judgment:

[A]n injured invitee must demonstrate that the defendant proprietor had actual or constructive notice of a dangerous condition. Notice is required in situations where the dangerous condition is one that is not created by the defendant or his employees[.]

Factors to be considered in looking for notice include the general condition of the premises and a pattern of conduct or recurring conditions. . . .

. . . Certainly a dangerous condition such as spilled liquid or power lines could be seen and dealt with appropriately. The seedpods, however, were blown due to high wind conditions and no amount of sweeping could prevent the repetitive influx of the pods from foreign locations.

Essentially, plaintiff in arguing this point makes the case that a proprietor must continually check for seedpods and battle the winds in his endeavors to keep the parking lot free from seedpods.

The defendants did no[t] create the condition and made a good faith effort to curtail it. Imputing knowledge of a random and continuous condition on this particular ...


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