On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-319-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 11, 2008
Before Judges Collester, Fisher and C.L. Miniman.
Plaintiffs Sandra and Melvin Feldman appeal from the grant of several summary judgments in favor of defendants The Maple Group, L.L.C. (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 raised planter in the public sidewalk in front of property owned by Maple in Summit that was partially constructed by Marsellis until it was removed from the job by Summit and replaced by Scafar.
Because this is a summary-judgment appeal, we assume that the Feldmans' assertions of fact are true and grant all the favorable inferences to them. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).*fn2 Our recitation of the facts is drawn solely from the admissible evidence in the plaintiffs' appendix, see Cipala v. Lincoln Technical Institute, 179 N.J. 45, 52 (2004); Gross v. Borough of Neptune City, 378 N.J. Super. 155, 159 (App. Div. 2005), and any facts admitted by the parties.*fn3
On April 10, 2003, Sandra Feldman, who was then sixty-eight years old, drove from her home in Millington to Summit, parked her car at a temple, and walked to the train station to catch a bus to Newark. She had been sitting as a juror in a federal criminal trial for about two weeks. At the end of the court day, she took the bus back to Summit and got off at the train station. On her way back to the temple parking lot, Sandra crossed Maple Street in front of 47 Maple Street, which is owned by Maple and occupied by the Berlitz School. She stepped up onto the curb, took a few steps on the sidewalk heading toward Maple's building, and then turned to her right to walk down the sidewalk. As she did so, her right foot caught the corner of the planter box that was closest to the school and she tripped and fell, breaking her right wrist.
The planter box had been partially constructed in the sidewalk in front of 47 Maple Street as part of a beautification project adopted by Summit on April 4, 2000, when it designated certain downtown properties as part of a Streetscape Improvement District (SID).*fn4 Maple's property was included in the SID.*fn5 The purpose of the SID was to promote economic growth and employment within the business district and, in particular, within the SID; enhance the local business climate; and allow Summit to apply for and accept funds from the State of New Jersey.
Summit's architects, Miceli Associates, developed plans for the SID project. Those plans were approved by Summit's town engineer, Statile, and requests for bids issued. In June 2000, Summit awarded the contract to Marsellis as the general contractor for the downtown improvement project, including paving the streets, putting in new sidewalks, and constructing between 150 and 200 planters in the new sidewalks. Philip Amsterdam, the president of Marsellis, testified at deposition that its contract was a unit-price, rather than a lump-sum, contract. Marsellis did all of the work under the contract except the concrete work for sidewalks, street curbs, and pavers in the street, which was done by J.C. Concrete, and the landscaping, which was done by Applied.
Each rectangular planter was to contain a shade tree. The planters abutted the street curb and intruded into the sidewalk a distance of five feet six inches. Each planter was seven feet long. In the spaces between planters, the sidewalk stretched from the street curb to the buildings. Each planter was to be dug to a depth at least sufficient to accommodate the shade tree's root ball. Inside the external dimensions, Marsellis was to install six-by-twelve-inch precast concrete planter curbs on top of footings installed below the sidewalk. The planter curbs were to project four inches above the level of the sidewalk. The top two outside inches of the planter curbs were to be beveled at a forty-five-degree angle. Inside the planter curbs, Marsellis was to install galvanized-steel wire wickets, which were to project eight inches above the top of the planter curbs, thus creating a visual height of twelve inches overall. The wickets were to curve outward at the top to overhang the planter curb. The top of the soil was to be level with the sidewalk, not the top of the planter curbs. Each planter was laid out by a licensed surveyor.
Marsellis removed and replaced the existing sidewalk and constructed the planter curbs, with modifications as directed by Summit. Marsellis then had a five-foot prototype of the wickets manufactured for Summit's review and approval. Summit was not happy with the prototype and deleted the wickets from the scope of work under the Marsellis contract. Summit then instructed Marsellis to fill the planters with soil to the level of the sidewalk and finish the items on Summit's punch list. Marsellis objected that it would be a safety hazard to only fill the planters to the level of the sidewalk and so Summit instructed Marsellis to fill the planters to the top of the planter curbs and plant ivy. Marsellis complied and was off the job around the middle of 2002. Statile redesigned the wickets, put the wicket contract out for bids, and Scafar was awarded the contract for the wickets on July 23, 2002.*fn6 However, the wickets were not actually installed until May 2003, a month after Sandra Feldman's fall.
Sandra Feldman testified that, after she fell, she did not see anything planted in the planter, not trees or ivy.*fn7 She testified that the planter box was not visible because there was no tree in the box and there was no metalwork around the edges of the box. She also testified that the sidewalk narrowed appreciably where the planter box was located, making it difficult for more than two people to walk abreast. There were no warnings or safety barriers around the planter on the day of her accident.
The Feldmans' expert, Theodore Moss, P.E., inspected the planter in front of 47 Maple Street on December 22, 2005. He opined that the edge of the planter curb, without the wickets installed and the tree planted, is problematic since this concrete curbing is relatively low and is constructed of concrete of the same coloration and texture as the surrounding concrete sidewalk. This makes it difficult for pedestrians to discern the planter edge curbing, thus presenting a trip hazard for pedestrians who may catch their feet on the corner or edge of the planter as they walk past.
He opined that the planter "presented a very serious pedestrian trip hazard at that time... directly associated with construction activities" rather than a design defect. Relying on various construction and sidewalk safety standards, including ones applicable to "owners," Moss opined that the "failure to alert and protect pedestrians during the construction process created a highly unreasonable pedestrian danger and was the direct cause of the accident and injury suffered by [Sandra] Feldman." He concluded:
In my opinion, the area where [Sandra] Feldman was injured, including the unattended and not barricaded or highlighted raised planter curbing that obstructed safe use of the sidewalk and caused her to trip and fall, was improperly and defectively constructed/installed by the construction contractor and defectively maintained by the property owner. At the very least, either the construction contractor or the City of Summit should have placed barricades, cones, etc., at the partially constructed planter unit during the construction process. A reasonable inspection by either of these entities would have revealed the potential hazard to pedestrians using the area and reasonable construction practice required that the construction operation be properly barricaded for public safety during the construction process. This is especially true in view of the location of this sidewalk area in a downtown business and commercial district near a train station and bus stop, where heavy pedestrian traffic was to be expected. The area condition was clearly and palpably violative of normal and accepted safe construction and maintenance practice and of the various codes and standards discussed herein. Under the circumstances, this was an unreasonably hazardous area, and an accident/injury of the type that occurred was entirely predictable. This accident was the result of dangers inherent in this installation and construction process; unnecessary dangers which were readily avoidable by normal and accepted construction and maintenance practice.
Maple filed a summary-judgment motion on February 8, 2006, seeking dismissal of the Feldmans' complaint, amended complaint, and all cross-claims on the ground that Maple was not liable as a matter of law. Summary judgment was granted on March 31, 2006. Marsellis also sought a summary judgment dismissing all claims and cross-claims and its motion was granted on July 21, 2006. Summit cross-moved on May 26, 2006, for indemnification from Marsellis and for a summary judgment dismissing the Feldmans' 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 the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.*fn8 Summit's motion was also granted on July 21, 2006. This appeal followed and we remanded the matter to the judge for written findings of fact and conclusions of law in accordance with Rule 1:7-4, which the judge timely supplied to us.
In her written opinion, after finding the undisputed facts, the judge correctly determined that Maple was a commercial-property owner that owed a duty to the public to maintain public sidewalks abutting its property in reasonably good condition and had a duty to pedestrians to maintain the abutting sidewalk in good repair, citing Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981). After discussing sidewalk cases after Stewart, the judge addressed the Feldmans' argument that Maple should have put a cone in place near the planter after Marsellis left the job and kept it there until the planter was fully constructed. The judge expressed concern about imposing such a duty because, she opined, it would mean that every commercial-property owner in downtown Summit would have had the same obligation as none of the planters were completed by July 2002.
The judge concluded "that the planter, which was designed to be filled with soil and flowers and a tree and surrounded by a wicket fence inside the concrete edging, was designed to be ornamental and not part of the means of ingress and egress to [Maple's] commercial enterprise... by pedestrians on Maple Street." The judge stated that "these planters were not intended to be walked upon." She found that imposing a duty on Maple to notify Summit that construction was not complete was pointless because it was Summit that terminated Marsellis's contract and hired Scafar and it knew that construction was not complete.
The judge then considered whether Maple was under a duty to warn pedestrians of the tripping hazard in some fashion, as by placing a cone or a barrier by the planter. In doing so, she examined "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 solution," citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). The judge observed that Maple and all the other downtown commercial-property owners were not in a position to complete construction of the planters, a process in the control of Summit and Scafar. She found that the attendant risk, failing to detect the tripping hazard, was a district-wide risk requiring a district-wide solution by Summit or Scafar, "not a piecemeal discretionary choice by each individual property owner." The judge held:
From a public[-]policy perspective, placing the duty on the party who is in control of the timing of the completion of the project makes more sense than shifting the burden to the property owners to come up with makeshift solutions of their own until the contractor completes the job it was hired to do.
For these reasons, this [c]court finds [Maple's] duty to maintain the premises to protect invite[e]s from a dangerous condition did not extend to being required to place cones or other warning devices around the planters in its sidewalk between the installation of the edging and installation of the wickets. Therefore, this [c]court enters summary judgment in favor of...
Maple... and against the [Feldmans].
The judge then discussed the summary judgment sought by Marsellis, considering the existence of a duty owed by it to the Feldmans. She determined that when the contract to install the wick-ets was taken away from defendant Marsellis, it no longer had a duty to complete the construction of the wickets, and therefore it cannot be liable to the plaintiff for failing to have done so.
Therefore, summary judgment is granted in favor of the defendant Marsellis... and against the [Feldmans].
Next, the judge addressed the cross-motion of Summit. She denied Summit's cross-motion for indemnification by Marsellis*fn9 and then considered the liability of Summit under the TCA. Summit contended that the Feldmans failed to establish that the planter in its incomplete condition was a dangerous condition of public property as defined by N.J.S.A. 59:4-2. The judge acknowledged that the question as to whether public property was in a dangerous condition was generally a jury question, subject to judicial determination of whether a reasonable fact finder could conclude that the property was in such condition. Noting that the planter was not intended to be a means of egress and ingress, "[t]here was no defect in the sidewalk itself..., nothing protruded from the planter into the sidewalk[, and t]he edging was intended to form the barrier between the sidewalk and planter," the judge found that "the incomplete planter was not a physical defect in the public property." She also observed that: the record does not establish that the barrier of the partially completed planter posed a risk to any other persons walking on the sidewalk in front of 47 Maple Street or elsewhere in the [SID] between the completion of the edging around the planters and the installation of the wickets.
The judge also considered whether the conduct of Summit was palpably unreasonable under N.J.S.A. 59:4-2. She again acknowledged that this was generally a jury question but noted that it was subject to judicial determination as a matter of law. She also noted that the record was bereft of any evidence of complaints about the planters prior to Sandra Feldman's fall. The judge concluded:
While reasonable minds could differ as to whether [Summit] acted negligently or not, the statute requires the [Feldmans] to prove much more than ordinary negligence. Given the determination that the planters are not part of the means of ingress and egress on the sidewalk, and no evidence of prior complaints that the edging presented a problem to pedestrians walking on the sidewalk, and the size of the project within the [SID], this [c]court finds that reasonable jurors could not find that [Summit's] role ...