On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, L-319-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...