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Makel v. Chazen


August 28, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7326-05.

Per curiam.


Submitted August 13, 2008

Before Judges R. B. Coleman and Sabatino.

Plaintiff Rudolph Makel appeals pro se from a September 20, 2007 order of the Law Division granting summary judgment in favor of defendants Bernard Chazen, Esq. and Chazen and Chazen, L.L.P. (collectively "defendants"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

On September 7, 2005, Makel filed a complaint, alleging that defendants committed legal malpractice by failing to file a timely complaint on his behalf in connection with a September 27, 1999 accident, in which plaintiff fractured his wrist.*fn1

Defendants answered the complaint on December 30, 2005, denying all liability. On or about August 22, 2007, defendants moved for summary judgment, and on September 20, 2007, the trial court entertained oral arguments on that motion. At the conclusion of the arguments, the court granted defendants' motion. That ruling was memorialized in an order entered and filed the same date. On November 6, 2007, Makel filed the instant appeal.

The facts of the underlying accident are not in dispute. On or about August 4, 1997, Makel was engaged as a subcontractor to perform security alarm system installations at the home of Todd and Michelle Snyder. Makel did not complete the installation of the alarm system on August 4, so he returned to finish the job on August 18, 1997. In order to accommodate the Snyders' work schedule, Makel agreed to return on August 18 at 6:30 p.m. At approximately 10:00 p.m. that night, Makel determined that he needed a tool from his truck in order to complete part of the installation. Makel then set out to retrieve the tool from his truck, exiting the Snyders' residence through the back door. As Makel proceeded to walk around the side of the house toward his truck, he tripped over a step and fell. As a result of the fall, Makel felt pain in his right arm and hand. In spite of the pain, Makel retrieved the tool from his truck and completed the job.

Upon completion of his work, Makel awakened the Snyders, who had fallen asleep on their couch, to get them to sign the necessary paperwork. Makel did not mention his injury to the Snyders, who are both doctors. He left the Snyders' residence and drove home. The following day, Makel sought medical attention for his injury at the Montclair Community Hospital. There he learned that he had sustained a right wrist fracture.

Makel retained the legal services of defendants for the purpose of bringing a workers' compensation claim against Socha Security, the company that hired him to perform the alarm system installation at the Snyders' home. Defendants acknowledge that in addition to the workers' compensation claim, they discussed with Makel the possibility of bringing a third-party civil action against the Snyders. On September 27, 1999, defendants did in fact file a complaint on behalf of Makel against the Snyders. That complaint was filed more than one month after the expiration of the applicable two-year statute of limitations. N.J.S.A. 2A:14-2. As a result, Makel's complaint against the Snyders was dismissed as untimely. On September 7, 2005, Makel initiated the malpractice action that is now before this court on appeal.

As noted above, after hearing argument from both parties, the trial court granted defendants' motion for summary judgment, concluding that Makel could not have sustained his underlying claim against the Snyders. Consequently, he could not prevail in his legal malpractice claim against defendants. More specifically, the court reasoned that Makel did not demonstrate that his injury was caused by a dangerous condition at the Snyders' premises. Moreover, to the extent the step constituted a dangerous condition, Makel was aware of it prior to the time of his fall.

Makel's deposition reveals the following facts, which are pertinent to this appeal. Makel stated that he voluntarily scheduled appointments that would cause him to work into the nighttime, such as the August 18 appointment he made with the Snyders. Makel further indicated that: (1) on August 4, he likely used the same walkway that he would trip on during his August 18 appointment; (2) he did not use the front entrance of the Snyders' home because it was used, in his words, for "decoration," rather than function; (3) on August 18, he used the subject walkway numerous times prior to nightfall; (4) he did not ask the Snyders to put a light on in the back of the house to illuminate the walkway and did not turn it on himself, although he was aware that lighting existed; (5) he may have been carrying a flashlight at the time of his accident; and (6) he claimed the step was defective because "it was on the walkway and [a] sudden step, you didn't expect to encounter."*fn2

Makel's brief on appeal does not conform to the requirements of Rule 2:6-2. Instead, Makel relies solely on general references to the record and he merely makes the assertion that "Defendant Bernard Chazen Esq. didn't only file my case late, but also missed Filing Date for Compensation from his Bancrupt [sic] Insurance Company, Aug. 30, 2004[.]" Typically, a brief that is so non-conforming would not be considered by this court. See, e.g., In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 49 n.1 (App. Div. 1989) (dismissing an appeal that was not briefed). We note that pro se litigants are expected to follow the Court Rules, just as an attorney. See, e.g., Clifton v. Cresthaven Cemetery Ass'n, 17 N.J. Super. 362, 364 (App. Div. 1952) (observing that compliance with a particular court rule should not be dispensed with when a non-lawyer appears pro se); Trocki Plastic Surgery Cent. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001) (pro se litigants are regarded as lawyers for the purposes of Rule 1:4-8). Nevertheless, the essence of plaintiff's appeal is obvious. Accordingly, we shall, in the interest of justice and completeness, address what we perceive to be the merits of this appeal.

"A legal malpractice action has three essential elements: '(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). In a legal malpractice suit, "plaintiffs [have] the burden of proving by a preponderance of the evidence that they would have won a favorable verdict against [the underlying tortfeasor]." Id. at 191. In other words, plaintiffs must prove the "suit within a suit." Ibid. Thus, in order to survive a grant of summary judgment in an ensuing legal malpractice action, the plaintiff must show that he or she could have presented a prima facie case in the underlying tort action. Ibid. The onus is on the plaintiff to show that he or she would have succeeded against the tortfeasor, had no malpractice occurred. Ibid. (citing Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004)).

In the present case, we are only concerned with the third element, causation. Defendants concede that they failed to file Makel's third-party complaint within the two-year period permitted by the statute of limitations. The statute provides: "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2. Defendants contend however, that the failure to file a timely complaint is of no consequence because Makel has not and cannot put forth facts demonstrating that he would have succeeded in his action against the Snyders. We agree that Makel could not present a prima facie case in his negligence action against the Snyders.

In Rigatti v. Reddy, we summarized the standard of care owed by a landowner to an independent contractor as follows:

As a general rule, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. This general rule operates to protect individuals performing work on the premises of the landowner, most commonly independent contractors and their employees. However, "the landowner '[i]s under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.'" "An independent contractor is one 'who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as to the result of the work.'" This exception is carved out of the landowner's general duty to protect invitees because "the landowner may assume that the independent contractor and [its] employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety." Stated differently:

The duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform. [318 N.J. Super. 537, 541-42 (App. Div. 1999) (internal citations omitted).]

In this case, Makel was in complete control of the methods and means used to perform the installation. All the tools he used were his own, and he did not consult with or seek guidance on direction from the Snyders. Moreover, to our minds, retrieving a tool from his truck in order to complete the installation was incidental to the work that Makel was hired to perform.

More fundamentally, we recognize that a landowner has the duty "to exercise reasonable care to make the premises reasonably safe or to give a warning adequate to enable avoidance of the harm. The obligation ordinarily does not exist where the invitee knows of the condition and realizes the risk." Pearlstein v. Leeds, 52 N.J. Super. 450, 459 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959). In sum, "[w]hether 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 of the circumstances in light of considerations of public policy." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

In the present case, Makel does not provide evidence that the Snyders failed to exercise reasonable care. Makel merely established that he tripped over a single step in a walkway while it was dark outside. This does not constitute prima facie evidence of negligence. The circumstances surrounding Makel's accident further support this conclusion. Makel voluntarily agreed to perform the installation, knowing that he would be working after nightfall. Not only was the condition of the walkway open and obvious to any person, but Makel had traversed the area numerous times and had knowledge of the specific condition. Makel had used the walkway and step on both the day of his accident and during his prior appointment at the Snyders' home on August 4. Makel was not only aware of the condition of the walkway, but he also had the ability to protect himself. At a minimum, Makel could have asked the Snyders to turn on a light to illuminate the walkway or he could have turned it on himself, considering that he was aware of the step.

Ultimately, "premise liability . . . is dependant upon injury being caused by a dangerous condition of property, which involves an unreasonable risk of harm." Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005). Makel has failed to present any evidence that the walkway or step was defective or that it created a dangerous condition.

Based on the foregoing, Makel could not adequately demonstrate a prima facie case against the Snyders in the underlying tort action. Consequently, his legal malpractice claim against defendants must also fail. See Jerista, supra.


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