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Fox v. Taubman Co.


March 27, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2731-02.

Per curiam.


Argued November 28, 2007

Before Judges Wefing and R. B. Coleman.

Plaintiff James D. Fox appeals pro se from a May 2, 2006 order granting the motion made by defendant The Taubman Company (Taubman) at the close of plaintiff's proofs at trial to dismiss the complaint pursuant to R. 4:37-2. After reviewing the record in light of applicable law and the contentions advanced on appeal, we affirm.

The pertinent facts and procedural history of the case are briefly summarized as follows. The Mall at Short Hills (the Mall) is a shopping center in Millburn owned by defendant Taubman. In the early morning hours of June 12, 2000, contractors at the Mall reported to security that an injured male was sitting on the ground floor adjacent to a five-tier parking garage. Upon responding to that location, a patrolling security guard found plaintiff's son, Alex Fox, lying on his side, face-down, against the wall underneath the parking garage. The responding guard contacted police and medical personnel who attempted to revive Alex. Sadly, their attempts were unsuccessful and a doctor pronounced Alex dead en route to the hospital.

On June 10, 2002, plaintiff filed a complaint, followed by an August 28, 2002 amended complaint, asserting claims against defendant Taubman and defendants, Prutaub Joint Venture (Prutaub) and Sordoni Skanska Construction (Sordoni) under the wrongful death and survivorship statutes, N.J.S.A. 2A:31-1 to -6 and N.J.S.A. 2A:15-3. Plaintiff alleged that defendants' negligence in constructing and maintaining the parking garage at the Mall, specifically, safety walls below the height required by the building code and a large step which negated the effectiveness of the safety walls, caused or substantially contributed to causing Alex to sustain serious and ultimately fatal injuries. Sordoni moved for summary judgment and its motion was granted on July 25, 2003. Thereafter, defendant and Prutaub moved for summary judgment and on December 19, 2003, those motions were granted.

Plaintiff appealed, and in an unpublished opinion dated August 1, 2005, we reversed and remanded the matter, noting that the evidence, viewed in a light most favorable to the plaintiff, could lead a rational jury to reasonably reach a conclusion in favor of plaintiff. Fox v. Taubman Co., No. A-2983-03T5 (App. Div. Aug. 1, 2005) (slip op. at 21). Prutaub subsequently filed another motion for summary judgment which the court granted on March 31, 2006.

The matter against Taubman alone proceeded to trial before a jury on May 1 and May 2, 2006. Plaintiff presented the testimony of five witnesses: Alexander Lisse, Pat Matullo, Thomas Maher, Philip Kehoe and plaintiff James D. Fox.

Alexander Lisse is a licensed architect in the State of New Jersey with approximately twenty-five years of experience. He was offered, without objection, as an expert witness with knowledge of codes and regulations affecting the design of buildings and structures. At plaintiff's request, Lisse inspected a particular area of the top level of the parking garage at the Mall that was identified by plaintiff. Lisse described that area as a perimeter wall that was forty-two inches high off the driving surface. He observed that near the base of the wall was a "step-like thing," sometimes referred to as a wheel stop, that was about twelve inches high and fourteen and a half inches across the top. The surfaces were all concrete and the horizontal surfaces had a textured anti-slip coating or membrane that served as a "barrier between the weather, salt, et cetera, and the concrete." The vertical surface had the basic protective coating but was not textured.

Lisse opined that the "step-like thing" was not intended as a wheel stop. Moreover, it would not function well as a wheel stop because wheel stops are usually six inches high. Being twelve inches high, this object would not provide clearance for the underside of the nose of a car which is usually eight or nine inches high. In addition, the leading edge of a car could be twenty to twenty-five inches from the front edge of the wheel, meaning a barrier fourteen inches long would not stop a car from making contact with the wall.

Lisse explained that the BOCA code and other codes in effect around the time of the incident that are the subject of this litigation require a guard, a forty-two inch high barrier, where there is a platform such as the edge of a deck, floor or balcony.*fn1 The barrier is to keep a person from going off the edge of the platform. On cross-examination, he agreed that "the purpose of a perimeter wall on a parking deck is so a car can't go through that wall and plunge over the side[,] and to keep people from falling over accidentally." He acknowledged it is not meant to keep someone from jumping over and that "someone can always climb up a 42-inch wall." He was not aware of the level of force the perimeter wall is required to withstand. Although it is implicit in Lisse's testimony that he regarded the perimeter wall as non-compliant with the forty-two inch height standard of the BOCA code, because of the adjacent twelve inch high "step-like thing," he never directly stated that opinion at trial.

On the night in question, Pat Matullo, a security officer at the Mall, was the acting supervisor on the midnight shift. At about 1:20 a.m., on Monday morning, June 12, 2000, Matullo was one of the first members of the security force to arrive at the scene where Alex Fox was found. There were no witnesses to what occurred. Matullo did not know where Alex landed; he only knew where he found him, lying face down next to the wall on the ground floor below and across from the parking garage. He could not identify a point of impact and did not notice any blood stains in the area because the ground was wet. The noticeable injuries were to Alex's feet and his knee.

Some of Alex's personal effects were found near the air-conditioners on one of the stilts on the Macy's fifth level roof, that is, the portion of Macy's roof that can be seen from the fifth level of the parking garage. In order for someone to get to that area, they would have to climb over or through bars or push the bars apart on the level below. Matullo did not recall whether there was a ladder leading down to the air-conditioner. So far as he recalled, there was no direct access and that is a restricted area. He added that if security guards on patrol found someone in that area they would call the police and have the person(s) arrested for trespassing. On Sunday nights, the Mall's stores close at 6:00 p.m. and the Mall's restaurants would close at about 11:00 p.m. The restaurants might have stayed open later if they still had patrons.

Thomas Maher and Philip Kehoe were employees of the Township of Millburn. Maher's testimony was extremely brief and not substantive. He had never seen an exhibit about which plaintiff inquired and he had no communications with the Administrator or the Mayor of the town about BOCA code compliance at the Mall or about Taubman entertaining employees of the town's building department.

Kehoe was the construction zoning official. His responsibilities were to oversee the building department and all of the sub-code officials. It was his department's job to make sure that structures met all codes and standards before a certificate of occupancy was issued. He expressed his familiarity with the forty-two inch standard of the BOCA code, which he understood to call for measurement from the lowest point to the highest point, not from any adjacent structure, such as the "step-like thing" referred to as a wheel stop. On cross-examination, Kehoe gave the following responses to questions about measuring the wall at the Mall and whether it complied with the BOCA code:

Q: [Mr. Fox] asked you about the exterior wall of the parking garage, fifth level. Now just so we can [be] clear - - the jury, it's your testimony that the measurement of the wall to conform with the code is from the floor surface, meaning the parking deck, to the top of the wall.

A: Correct.

Q: Is that correct?

A: Correct.

Q: And as long as that's 42 inches which it is - -

A: It meets the code.

Q: - - it meets the code. So there is no code violation?

A: Right.

Kehoe was not in the building department in Millburn when the certificate of occupancy was issued for the parking deck at the Mall. However, that certificate of occupancy, to his knowledge, has never been revoked and, to the extent it is the BOCA code that is at issue, his interpretation is that, if the perimeter wall measured from the top of the wall to the parking surface is forty-two inches, it satisfies the BOCA requirements.

Plaintiff James D. Fox testified concerning the economic issues asserted in the case regarding: his relationship with Alex; Alex's upcoming graduation from Rutgers; his relationship with his girlfriend; and other positive circumstances that plaintiff believed made it unlikely that Alex would commit suicide, as suggested by defendant. Fox did not know why Alex was at the Mall on the night of the incident.

After plaintiff had presented his witnesses and rested, defendant moved to strike the expert's testimony as speculative and to dismiss the complaint for plaintiff's failure to prove a prima facie case. The court denied the motion to strike the expert's testimony, but granted defendant's motion to dismiss the complaint with prejudice. The court noted that plaintiff had failed to provide facts that demonstrate an accident resulted from negligence on the part of defendant. Specifically, the court found that there was no proof that Alex was actually on the fifth floor of the garage or, if he was, that Alex fell from a spot where the parking deck barrier did not meet applicable safety regulations. Although the court conceded it was possible that Alex had been on the fifth floor of the parking garage, it ultimately concluded that plaintiff had not satisfied the applicable burden of proof. The court explained:

There it seems to me is the failure of proof in this case. We don't know what happened, we don't know because there is no evidence that Alex Fox was on the fifth floor of the garage in the area of the garage depicted in the photograph where the Plaintiff's expert Mr. Lisse said, "the railing was too short, it didn't meet the code, and that it therefore created a hazardous condition."

We don't know that Alex Fox was there. There was no evidence to demonstrate by a preponderance of the evidence that that's where he was. We don't know that this accident came about as a result of that portion and had anything to do with that portion of the railing.

It is possible that that's what happened. It is possible that Alex Fox was on the fifth floor in that location and that the railing was hazardous, but it is also possible that he was somewhere else in the garage. It is possible that he fell or jumped, was assisted over the railing at some other part of the garage. All these are possible scenarios as to what took place.

In order for the Plaintiff to sustain his burden as the proofs have been presented in this case the Plaintiff must have proof that makes it probable, not possible, but probable that Alex Fox fell on the fifth floor of the garage in the precise area that Mr. Lisse said the railing failed to meet the code. Not that he possibly fell from that spot, not that he possibly fell from another spot, not that he jumped, not that he was assisted over the railing by a third party.

The Plaintiff must demonstrate that the proofs show that he probably fell at that spot where Mr. Lisse specifically provided the testimony. We don't have sufficient proof to reach that conclusion that Alex Fox probably fell from that spot. We only have the possibility that he fell in that spot. The only proofs in the case that establish negligence is as it relates to that particular spot. That is the extent as I see it of the Plaintiff's proofs in this case. That's insufficient to let this case go to the Jury.

Thus, the court found that the proofs were speculative as to the place from which Alex fell, and that the only proofs put forth by plaintiff related to the expert's inspection of a particular spot that plaintiff had identified and which the expert contended did not meet the relevant safety code. According to the trial court, that was insufficient for the case to proceed to a jury.

In this appeal, plaintiff argues: (1) that the trial court erred in its determination that the evidence presented by plaintiff could not allow a rational jury to conclude in favor of plaintiff; (2) that the trial court erroneously exceeded its authority and overturned the remand decision of the Appellate Division; and (3) that the trial court demonstrated bias against plaintiff and in favor of defendant in that it did not view defendant's motion in the light most favorable to plaintiff. It is our view that those are all different iterations of the same argument, which we reject. We shall, nevertheless, treat each argument as a distinct challenge to the trial court's ruling.

The first argument is that the trial judge misjudged the worth or import of the evidence. Rule 4:37-2(b), which governs the dismissal of a claim at the close of a plaintiff's case, provides that:

After having completed the presentation of the evidence on all matters other than . . . damages . . . the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action . . . on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.

It is well-established that a motion for involuntary dismissal should be denied "if the plaintiff has shown a prima facie case, i.e., any evidence including all favorable inferences to be drawn therefrom which could sustain a judgment in plaintiff's favor." Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:37-2. On the other hand, "dismissal is appropriate when no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Ibid.

The trial court was cognizant of the controlling standard and recited it as it began its analysis of the proofs. The court correctly noted, however, that "there must be recognized the distinction between proof of a possibility that something occurred as opposed to the probability that something occurred. . . . [N]egligence cannot be presumed; it must be proved. The mere happening of an accident is not proof of negligence." The court further observed that there was no evidence as to why Alex was present at the Mall and no evidence to indicate anybody else was present at the time or that the Mall was open for business after 11:00 p.m. on that Sunday night. There was circumstantial evidence suggesting that Alex had gone onto the roof of the Macy's building, but rather than to presume that Alex was a trespasser in that restricted area (and thus owed a more limited duty to refrain from acts which willfully injure), the court reasoned "that somebody else [may have] put his belongings on the roof of the building." The court ultimately concluded, however, that it did not matter whether Alex was a trespasser or a licensee, because even if the owner of the premises had a duty "to give a warning or to make the railing on the fifth floor less or more safe," there was no evidence from which the jury could conclude that the breach of such duty proximately caused the harm suffered by Alex.

We do not agree with the trial court's emphasis on the absence of any reliable proof as to the particular spot from which Alex may have fallen because there was no evidence that the perimeter wall at the spot Lisse measured was different from any other spot on the fifth floor of the garage. We do agree, however, that there was no nexus shown between the height of the wall and Alex's descent. See Isko v. Planning Bd. of Tp. of Livingston, 51 N.J. 162, 175 (1968) (indicating that if the order of the lower tribunal is valid, the fact that it is predicated on an incorrect basis will not stand in the way of its affirmance). There was no basis, beyond sheer speculation, from which the jury in this case could determine Alex surmounted the wall accidentally or deliberately.*fn2

It has been observed that the trial court must consider this type of motion mechanically, having no concern "with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). The standard of review is the same on appeal from an involuntary dismissal. Baliko v. Int'l Union of Operating Eng'rs, 322 N.J. Super. 261, 272-73 (App. Div. 1999). Mindful of that standard, we are satisfied, based upon a careful review of the proofs at trial, that reasonable minds could not find in favor of the plaintiff and that the trial court appropriately granted defendant's motion.

"Under general principles of tort law, 'there are two essential elements of a cause of action based on the alleged negligence of a tortfeasor which must exist in order to make that cause of action viable and a suit based thereon maintainable, namely, the act of negligence itself and a consequential injury resulting therefrom.'" White v. Mattera, 175 N.J. 158, 165 (2003) (citing Montag v. Bergen Bluestone Co., 145 N.J. Super. 140, 144 (1976)). "[T]he issue of a defendant's liability will not be presented to the jury simply because there is some evidence of negligence." Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002). Rather, "'there must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence . . . and the resulting injury.'" Ibid. (quoting Germann v. Matriss, 55 N.J. 193, 205 (1970)). Thus, a mere possibility of causation is not enough to withstand a motion for a directed verdict:

[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

[W. Page Keeton et. al., Prosser & Keeton on the Law of Torts, § 41 at 269 (5th ed. 1984).]

In the present case, plaintiff did not present adequate proof of a nexus between the allegedly defective condition of defendant's property, that is, the height of the perimeter wall of the parking deck, and the cause of the decedent's injuries and death to require that the case proceed to the jury.

The testimony of plaintiff's expert and the portions of his reports discussed at trial merely establish that if measured from the top of the wall to the top of the adjacent step-like surface, the wall on the fifth floor of the parking garage would be less than the requisite forty-two inches high. However, even assuming that such evidence would establish that there was a code violation, such evidence does not tend to show that Alex likely lost his balance or fell because he tripped, slipped or leaned over a wall that was lower than it should have been. Thus, even if that defendant was negligent in the construction and maintenance of the retaining wall of the parking deck, plaintiff failed to produce evidence that would allow a rational jury to reasonably find that defendant's negligence was a proximate cause of Alex's injuries and death.

The testimony of the security guard does not strengthen plaintiff's conjectures. Plaintiff contends that Alex landed in a location directly below the area assumed to be in violation and that the injuries were too severe to have resulted from a fall from one of the lower floors. Giving plaintiff the generous favorable inference to which he is entitled, it still does not provide the nexus that would allow a jury to conclude rationally, and without speculation, that Alex accidentally fell from the area identified by his father. Accepting that it is possible that Alex fell or jumped from that location, such a possibility does not implicate the height of the wall as a substantial causative factor. Reynolds, supra, 172 N.J. at 284.

Plaintiff contends that the trial court exceeded its authority in granting the motion for involuntary dismissal and that it effectively overruled the binding decision of this court, by which we earlier reversed the grant of summary judgment and remanded the matter to the trial court. That contention is misplaced. Plaintiff's argument mischaracterizes the procedural posture of the case and the effect of our prior decision. Although the tests for summary judgment and involuntary dismissal are similar, there remains an important distinction, which the Supreme Court noted in its opinion in Brill, supra, 142 N.J. at 536. There, the Court observed:

The only distinction between (1) a directed verdict at the end of plaintiff's case pursuant to Rule 4:37-2(b), (2) a directed verdict pursuant to Rule 4:40-1 after all the evidence has been presented, (3) a judgment notwithstanding the verdict pursuant to Rule 4:40-2, and a summary judgment that allows a Rule 4:37-2(b) weighing of evidence to determine if a genuine issue of material fact exists, is that summary judgment motions are generally decided on documentary-evidential materials, while the directed verdicts are based on evidence presented during a trial. Under our holding today, the essence of the inquiry in each is the same: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."

When we decided plaintiff's prior appeal from the grant of summary judgment, we considered the documentary evidence that was available. That included the medical examiner's report and the report of plaintiff's expert. At trial, the medical examiner's report was not admitted and the expert's testimony provided no basis for a jury to conclude that the proximity of the "step-like thing" adjacent to the wall - if that rendered the wall non-compliant - substantially contributed to Alex's fall. Based upon the evidence presented at the summary judgment stage, we found that the case should not have been dismissed. That decision did not limit the trial judge's ability to grant a motion for involuntary dismissal if it was otherwise appropriate. The trial court duly considered defendant's motion based on the evidence adduced at trial, and its ruling does not conflict with nor overrule our prior decision reversing summary judgment. That decision was based on the procedural posture and the documentary evidence available at that time.

Plaintiff's final argument is that the trial judge demonstrated bias against him and in favor of defendant. This is alleged to be evident in the number of objections sustained in favor of defendant and the judge's failure to draw inferences in plaintiff's favor. Plaintiff also surmises in his brief that "Perhaps this gross imbalance is influenced by the lack of Plaintiff's legal training as a Pro Se filer." These rationalizations for the outcome lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Based on our review of the record and applicable law, the decision of the trial judge to dismiss plaintiff's claim with prejudice, pursuant to R. 4:37-2, is affirmed.


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