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Proto v. CVS


May 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-2030-05.

Per curiam.


Argued January 16, 2008

Before Judges Wefing and R. B. Coleman.

Plaintiff Frank Proto appeals from two separate orders dated August 18, 2006, pursuant to which the court granted summary judgment in favor of defendant CVS Hoboken, LLC (CVS) and defendants Koenig Management and Washington-Hudson Associates (the landowner defendants). The orders dismissed plaintiff's claims against those defendants with prejudice. Thereafter, in January 2007, plaintiff settled his claims against the defendant City of Hoboken (the City). Plaintiff then appealed the orders granting summary judgment in favor of CVS and the landowner defendants.*fn1 The City is not involved in this appeal.

The material facts may be succinctly stated. On June 23, 2003, plaintiff, a newspaper deliveryman, severely injured his left foot when he stepped into a pothole in the street near a no parking zone that abutted a multi-tenant building owned by defendant Washington-Hudson Associates and operated by Koenig Management. Defendant CVS is one of the multiple tenants of the building. At the time of the accident, plaintiff was delivering newspapers to CVS.

Following the exchange of discovery, the defendants filed motions for summary judgment which were granted. In its decision from the bench, the court ruled, as a matter of law, that "neither . . . CVS nor Washington/Koenig had any duty whatsoever regarding the public street, a public roadway [, and] the cases to which and on which the plaintiff relied, are absolutely distinguishable . . . ." The court further reasoned "just the bare assertion by the plaintiff that [it] is his practice and custom [to load or unload his newspapers in that area] cannot be construed to or expanded to create a duty . . . of CVS or Washington/Koenig to maintain that area which is 10 feet -- by all accounts 10 feet out into the public street." This appeal ensued.

An appellate court's "review of a summary judgment order is akin to that of [a] trial court." Coyne v. State, Dep't of Transp., 182 N.J. 481, 491 (2005). In Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc., the Court summarized the standard as follows:

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining whether there exists a genuine issue of material fact that precludes summary judgment, a court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). [181 N.J. 245, 270-71 (2004).]

"Whether a duty exists is a matter of law, to be decided by the court, not the factfinder." Siddons v. Cook, 382 N.J. Super. 1, 8 (App. Div. 2005).

In his appellate brief, plaintiff contends the trial court applied the wrong standard and made factual determinations that were improper on motions for summary judgment. He contends the principles of Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) have been expanded and liberalized in a series of subsequent cases such that a different result is warranted. We disagree.

Stewart, supra, of course, "carved out a limited exception to the common law rule that an adjoining landowner was not liable for injuries suffered by a pedestrian on a defective or dilapidated public sidewalk, unless it had contributed to the dangerous condition." Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530, 533-34 (App. Div. 2003). Stewart, supra, expanded the duty owed by a commercial landowner to pedestrians by holding that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." 87 N.J. at 157. That duty to maintain abutting sidewalks "is confined to owners of commercial property." Id. at 159.

Plaintiff notes, however, that the duty imposed on commercial landowners has evolved beyond Stewart to a more flexible approach based on an abiding sense of fairness under all the circumstances in light of considerations of public policy. Bedell v. St. Joseph's Carpenters Soc'y, 367 N.J. Super. 515, 523 (App. Div. 2004).*fn2 The more flexible approach upon which plaintiff relies entails a general analysis of duty that is well established and regularly applied. See, e.g., Monaco v. Hartz Mountain Corp., 178 N.J. 401, 417-18 (2004) (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439 (1993)).

In Monaco, supra, the Court reiterated that "'whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy.'" Id. at 418 (quoting Hopkins, supra, 132 N.J. at 439). The Court explained that the inquiry involves "'identifying, weighing and balancing several factors [including] the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed resolution.'" Ibid. (quoting Hopkins, supra, 132 N.J. at 439). The dangerous condition in Monaco was a defective traffic sign situated on the sidewalk that was blown by the wind into the plaintiff, injuring him. Id. at 404-05. The sign was owned by the City and had been imbedded in the sidewalk installed by the commercial landowner as part of its building renovation. A municipal ordinance purported to impose upon the landowner primary responsibility for inspection and maintenance of the sidewalk and any installations thereon. Id. at 406-07. There was evidence that prior to the incident, the condition of the sign and the sidewalk at the base of the sign were such that "even a minimally competent inspection would have revealed the defect that led to the plaintiffs' injuries." Id. at 410.

Under such circumstances, the Monaco Court concluded that "[w]hether we apply the classic commercial landowner liability standard as urged by [the landowner] or the more fluid Hopkins rule . . . is inconsequential." Id. at 418. Either way, a reversal was in order in that case. Ibid. Likewise, in this case, it is inconsequential whether the classic commercial landowner liability standard or the more fluid Hopkins/Monaco standard is applied. Either way, an affirmance of the dismissal is in order.

Applying the classic landowner liability standard, as the trial court did, the condition causing the harm was not on the sidewalk abutting the commercial landowner's property or within the curb line. Rather, it was in the public thoroughfare, where vehicles, not pedestrians, are expected to traverse. Plaintiff argues "it cannot be conclusively said that [the area] was not functionally a loading and unloading zone." In response to that argument, the motion judge accurately observed that the record only established that parking was prohibited in the area; there was no evidence that it was a designated loading zone or that parking was prohibited so that someone could load and unload for the benefit of CVS or any of the other tenants of the building. Hence, the court properly rejected the suggestion that a jury question had been presented on that issue or on the location of the pothole, that is, whether the pothole was located "in the middle of a public street or out 10 feet into a public street." "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

As to the first asserted issue, plaintiff's personal practice or custom and his subjective impression of the permissible use of the area are irrelevant and do not raise a genuine dispute as to a material issue of fact. He was obliged to establish a factual basis for an inference that the prohibition of parking benefited or was intended to benefit defendants.*fn3 Similarly, the court's characterization of the location of the pothole did not intrude upon the province of the factfinder since there was no dispute that the pothole was in the street. Ultimately, whether it was "in the middle" or ten feet from the curb is not material.

Applying the more flexible approach advocated by plaintiff, we are satisfied from our own independent review of the facts and circumstances that there is no sense of basic fairness and justice that compels a result different from that reached by the trial court. The plaintiff delivered newspapers to the location that included the premises of the CVS. To facilitate his deliveries, he opted to park in a no parking zone, in accordance with what he contends was his custom and practice. Upon alighting from his vehicle, he stepped into a pothole in the public thoroughfare, as a result of which he sustained serious injuries. There is no evidence and no assertion that the defendant caused or contributed to the creation of the pothole and the hazard it posed. Moreover, there is no assertion that the pothole was not open and obvious or that it would have been more readily apparent to the defendants than to the plaintiff or any other citizen or user of the public roadway.

Viewing the evidence in the light most favorable to the plaintiff, and accepting that a commercial landowner's duty, when warranted by the facts, may extend to a dangerous condition not located on its property, we perceive nothing about the relationship of the parties or about the facts or circumstances of this case that would cause us to disturb the trial court's order dismissing plaintiff's claims against these defendants.


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