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Fox v. Taubman Co.

March 27, 2008

JAMES D. FOX, PLAINTIFF-APPELLANT,
v.
THE TAUBMAN COMPANY, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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Plaintiff appealed, and in an unpublished opinion dated August 1, 2005, we reversed and remanded the matter, noting that the evidence, viewed in a light most favorable to the plaintiff, could lead a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 ...


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