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Feldman v. Maple Group


May 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, L-319-05.

Per curiam.


Argued: February 11, 2008

Before Judges Collester, C.S. Fisher and C.L. Miniman.

Plaintiffs Sandra Feldman and Melvin Feldman appeal from the grant of several summary judgments in favor of defendants The Maple Group, LLC (Maple), City of Summit (Summit), and Marsellis Warner Corp. (Marsellis).*fn1 This is a personal injury action seeking damages for injuries Sandra Feldman suffered on April 10, 2003, when she tripped and fell over a partially constructed raised planter in the sidewalk in front of property owned by Maple. Maple is the owner of the property at the place in the sidewalk where Sandra Feldman fell. Marsellis was the contractor hired by Summit to construct the raised planters. Marsellis was removed from the job by Summit, which hired defendant Scafar Contracting Corp. (Scafar) to complete the job.

Maple sought a summary judgment dismissing plaintiffs' claims on the ground that it was not liable as a matter of law. Summary judgment was granted on March 31, 2006. Marsellis also sought a summary judgment on the same ground and its motion was granted on July 21, 2006. Summit cross-moved for indemnification from Marsellis and for a summary judgment dismissing plaintiffs' claims against it on the grounds that it had not acted in a palpably unreasonable manner, the sidewalk was not in a dangerous condition and it enjoyed design immunity under N.J.S.A. 59:4-6. Summit's motion was granted on July 21, 2006.

On the same day the judge also granted unopposed summary-judgment motions in favor of defendants Miceli Kulik Williams & Associates and Christopher P. Statile, P.A. On January 12, 2007, the judge denied a summary judgment motion filed by Scafar, the last remaining defendant. The matter was listed for trial on January 16, 2007, and plaintiffs settled their claims against Scafar. This appeal followed.

In her oral decision on March 31, 2006, granting summary judgment to Maple Shade, the judge stated to counsel for Maple that "I do think you're right, if it looked the way it was supposed to look, then it's a defect. If something happened to it and they're out there looking at it in the morning, they should call somebody." After further argument, the judge held: "I agree with Judge Brotman's analysis in May [v. Atlantic City Hilton, 128 F. Supp. 2d 195, 200 (D.N.J. 2000)], and I'm going to grant it and I'm leaning on granting that one but you can check it out some more about what their contract is about."

On July 21, 2006, the judge decided Marcellis's motion and held "when another . . . company comes in and takes over the obligation of the one who is basically zapped, the one that's zapped is off the hook." The judge also found that plaintiff "didn't fall in the two or three days or two weeks or whatever in between. She fell after. So, . . . they cannot be responsible for an obligation that somebody else assumes."

With respect to Summit, after commenting "I don't think it's substantial," the judge placed the following decision on the record:

Well, I guess, you could ask the Appellate Division if they think that there should be cones everywhere [around city sidewalk construction]. Because, I, I really, I don't think it's a substantial risk. And, -- but she, she wasn't using [the planter]. She was supposed to be going around it. It's not a question of using the planter box. It's a question not tripping on the, and stubbing, basically, stubbing your foot on the concrete and then falling.

Honestly, Counsel, if you want to ask them and see what they say, there really are a lot of downtown projects. If they really think this is, they'll say so. But I don't think so.

So it's not a dangerous condition as described in the statute. And, even if that's not true as far as this, this -- even if that -- I'm wrong on that one, it is not palpably unreasonable for them to wait for the contractor to put the wickets in, because they can't do it all at once.

The judge then granted both motions for summary judgment.

Rule 1:7-4 governs findings by the court in bench trials and on motions. Subsection (a), "Required Findings," provides: "The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." (Emphasis added.) Lest there be any doubt that this rule applies to a summary judgment, R. 4:46-2(c) specifically provides that "[t]he court shall find the facts and state its conclusions in accordance with Rule 1:7-4." (Emphasis added.)

The critical importance of this function has been addressed by the Supreme Court on multiple occasions. For example, in Ronan v. Adely, 182 N.J. 103, 110-12 (2004), the Supreme Court remanded a trial court's denial of a mother's request to change her son's surname because the court received no testimony from the parties and made no findings of fact. See also Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999) ("In a non-jury action, the court, whether deciding the matter on a motion at the close of the plaintiff's case or the entire case, should support its decision with adequate findings of fact."); Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) ("In a non-jury civil action, the role of the trial court at the conclusion of the trial is to find the facts and state conclusions of law. . . . Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'") (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).

We, too, have addressed this issue. In Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005), we remanded a Law Division judge's decision that lacked sufficient reasons, finding that "[o]ur review . . . is hampered by the absence of findings and a more complete record." See also In re Commitment of M.M., 384 N.J. Super. 313, 332 (App. Div. 2006) ("[W]ithout findings relevant to the legal standards the litigants and the reviewing court 'can only speculate about the reasons' for the decision.") (quoting Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986)); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (observing that the court's "examination into the soundness of the order in question is hampered by the trial judge's failure to adequately explain" the reasons for his decision).

Here, the judge did not state the undisputed material facts on which she relied in granting summary judgment to any of these three defendants. She also did not discuss the statutes and case law*fn2 applicable to those facts in order to support her ultimate conclusion that summary judgment was appropriate. Appellate review of these deficient ultimate conclusions is simply impossible. We are, thus, compelled to remand this matter to the judge, who shall prepare a written opinion setting forth the undisputed material facts on which she relied in granting summary judgment. The opinion shall also discuss the relevant law and explain its application to the facts of this case. The judge's written opinion shall be filed with the Clerk of the Appellate Division within twenty-one days of the date of this decision. The parties shall not file any additional materials or briefs with the motion judge or with us. We retain jurisdiction.

Remanded for preparation of a written opinion in accordance with this opinion.

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