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Proto v. CVS

May 20, 2008

FRANK PROTO, PLAINTIFF-APPELLANT,
v.
CVS, CVS HOBOKEN, LLC, WASHINGTON-HUDSON ASSOCIATES, KOENIG MANAGEMENT, DEFENDANTS-RESPONDENTS, AND CITY OF HOBOKEN, ROTONDELLA BROTHERS, INC., MITCHELL ENTERPRISES, DEFENDANTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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