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Feldman v. Maple Group

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 7, 2008

SANDRA FELDMAN AND MELVIN FELDMAN, PLAINTIFFS-APPELLANTS,
v.
THE MAPLE GROUP, LLC, CITY OF SUMMIT, AND MARSELLIS WARNER CORP., DEFENDANTS-RESPONDENTS, AND
BERLITZ SCHOOL, SCAFAR CONTRACTING CORP., ALPINE LANDSCAPING, APPLIED LANDSCAPING, MICELI KULIK WILLIAMS & ASSOCIATES, AND CHRISTOPHER P. STATILE, P.A., DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-319-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 11, 2008

Remanded: May 5, 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

I.

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.

II.

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 in the delay in the installation of the wickets was patently unacceptable and that no prudent person would approve of its inaction.

Thus, the judge granted the cross-motion of Summit for dismissal of the Feldmans' claims. This appeal followed.

In reviewing a ruling on a summary judgment motion, we apply the same standard as that governing the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is designed to provide a prompt, businesslike and inexpensive method of resolving cases. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Summary judgment is only appropriate if there is no genuine issue as to any material fact in the record:

The judgment or order sought shall be rendered forthwith if 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).]

The Brill Court outlined the standard for deciding a summary judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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, supra, 142 N.J. at 540.]

The judge must not decide issues of fact in considering a summary judgment motion. Ibid.; Judson, supra, 17 N.J. at 75. Therefore, the motion must be considered on the basis that the nonmoving parties' assertions of fact are true and "grant all the favorable inferences to the non-movant." Brill, supra, 142 N.J. at 536. The determination is whether "the evidence'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a'genuine' issue of material fact for purposes of Rule 4:46-2." Id. at 540 (citations omitted).

III.

With respect to the summary judgment dismissing all claims against Maple, the Feldmans argue that Maple had a duty to warn pedestrians of the tripping hazard no matter who created the danger, relying on Monaco v. Hartz Mountain Corp., 178 N.J. 401 (2004); Mirza v. Filmore Corp., 92 N.J. 390 (1983); and Bedell v. Saint Joseph's Carpenter Society, 367 N.J. Super. 515 (App. Div. 2004). As a consequence, they contend that the issue of Maple's negligence had to be resolved by a jury.

Maple, on the other hand, contends that Summit owns the sidewalk and that Moss did not opine that Maple was negligent because his references to "the owner" refer only to Summit. It argues that May v. Atlantic City Hilton, 128 F. Supp. 2d 195 (D.N.J. 2000), controls the issue of its negligence as a matter of law and that Monaco and Bedell are clearly distinguishable from the facts before us.

The duty of a commercial entity to the public traversing a sidewalk in front of the commercial establishment has been thoroughly developed in Stewart and its progeny. The Stewart Court determined that a duty to repair defective sidewalks should be imposed on abutting commercial-property owners. Stewart, supra, 87 N.J. at 157. In doing so, the Supreme Court observed, "Logic and common sense... support the imposition of this duty, inasmuch as owners of abutting property are in an ideal position to inspect sidewalks and to take prompt action to cure defects." Id. at 158 (citation omitted). Two years later, the Court extended the duty of care respecting defects in abutting sidewalks to include a duty to use reasonable care to remove snow and ice. Mirza, supra, 92 N.J. at 395-96.

In Brown v. St. Venantius School, 111 N.J. 325, 332-33 (1988), the Court resolved a conflict in our decisions and ruled that a religious school charging tuition to its students, employing teachers and other personnel, purchasing supplies and teaching materials, and maintaining a physical plant was a commercial landowner subject to the duty to remove snow and ice. In Bligin v. Jersey City Housing Authority, 131 N.J. 124, 136-37 (1993), the Supreme Court imposed the duty to remove snow and ice on public housing authorities, albeit subject to the proof requirements of the TCA.

In Hopkins, which is not a sidewalk liability case, the Supreme Court was required to decide whether a realtor had a duty to warn business invitees to an open-house tour of dangerous conditions in the home. Hopkins, supra, 132 N.J. at 431. The accident occurred inside the home, id. at 432, and the issue presented was novel. The Court observed that traditional common-law principles of landowner liability did "not necessarily provide reliable guidance in determining the existence and scope of the duty of care that should be ascribed to a broker." Id. at 438. It concluded,

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but... whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law. [Ibid.]

Having focused the inquiry, the Court established the factors to be considered in "[d]etermining the scope of tort liability." Id. at 439. The Court held:

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 of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors--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. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct. [Ibid. (citations omitted).]

Returning to sidewalk liability cases, in Gaskill v. Active Environmental Technologies, Inc., we considered whether a commercial-property owner had a duty of care with respect to a metal grate around a tree planted toward the outer edge of the sidewalk. 360 N.J. Super. 530, 532 (App. Div. 2003). As here, the property on High Street was in a commercial district and the sidewalks extended from the buildings to the curbs. Id. at 533. The trees along High Street had been planted in 1991 by Mt. Holly, which installed metal grates in the sidewalk around the base of the trees. Ibid. The plaintiff tripped and fell because the metal grate in front of defendant's property had been pushed up above the level of the sidewalk by a tree root. Ibid.

We discussed the cases analyzing when curbs are considered part of a commercial sidewalk such that the property owner has a duty of care respecting the curb as well as the sidewalk. Id. at 534-35. We noted that in Levin v. DeVoe, 221 N.J. Super. 61, 64 (App. Div. 1987),

We concluded that a curb separated from the sidewalk by a grass strip was not an integral part of the sidewalk but rather was a feature of the road and was, therefore, "a significantly less immediate means of pedestrian ingress and egress to the abutting property than is a sidewalk." [Gaskill, supra, 360 N.J. Super. at 535 (quoting Levin, supra, 221 N.J. Super. at 65).]

We also noted that in May Judge Brotman concluded that a handicap ramp occupying the gutter area between the curb and street was part of the sidewalk because "'the ramp, like a sidewalk, is used by pedestrians to move from the street to the hotel and has nothing to do with roadway functions such as channeling cars and water.'"*fn10 Ibid. (quoting May, supra, 128 F. Supp. 2d at 200). We further considered the dicta of Judge Skillman in Thomas v. Second Baptist Church of Long Branch, 337 N.J. Super. 173, 176 (App. Div. 2001), suggesting that, but for charitable immunity, the church would not have been immunized from liability for plaintiff's injuries as a result of tripping and falling on a raised metal grate in the sidewalk. Gaskill, supra, 360 N.J. Super. at 535-36.

Finally, we considered Gaskill's contention that "the tree grate is designed to be part of the pedestrian walkway, as it is supposed to be level with the sidewalk and allows for drainage like any grate." Id. at 536. We concluded that submission to a jury was required because "the evidence presents a debatable question as to whether the subject tree grate contained within the outbounds [sic] of the sidewalk is structurally an integral part of the sidewalk and is used as a pedestrian walkway or means of pedestrian ingress and egress to the abutting property." Ibid.

The plaintiff in Monaco was injured when "a gust of wind dislodged a nearby municipal parking sign... installed on Hartz's sidewalk." Monaco, supra, 178 N.J. at 404. Monaco's expert, Theodore Moss, reported that the sign in question had been damaged and dislodged by vehicles, the sign "'wiggl[ed]' very noticeably in the wind," and truck drivers had seen the sign in that condition for at least a month before Monaco's accident. Id. at 405-06. On the date of the accident, the sign became totally dislodged and, blown by the wind, struck Monaco on the head, knocking him against the doors of Hartz's building. Id. at 409. A witness saw the sign being pulled out of the cement by the wind and becoming airborne. Ibid. That same witness testified that he had seen cars and trucks hit the sign on multiple occasions over a three-year period. Ibid.

At the close of Monaco's case, the judge granted a directed verdict in favor of Hartz, reasoning that it had no "legal duty with respect to the traffic sign" because it had been installed in the sidewalk by Newark and Hartz never assumed responsibility to inspect the sign. Id. at 411. We affirmed that determination, concluding that Hartz "had no legal duty with respect to a traffic sign owned and installed by the municipality." Ibid.

The Supreme Court disagreed and concluded that a commercial "landowner owes a duty to its invitees to maintain its land in a safe condition, to inspect, and to warn of hidden defects [in the sidewalk abutting its property] whether within its power to correct or not...." Id. at 404. The Court approvingly cited three of our decisions and a Law Division decision imposing a duty to warn of dangerous conditions that were not located on the landowner's commercial property but which invitees might encounter. Id. at 415 (citing Warrington v. Bird, 204 N.J. Super. 611 (App. Div.), certif. denied, 103 N.J. 473 (1986); Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 16 (App. Div. 2001); Mulraney v. Auletto's Catering, 293 N.J. Super. 315 (App. Div.), certif. denied, 147 N.J. 263 (1996); Jackson v. K-Mart Corp., 182 N.J. Super. 645 (Law Div. 1981)). The Court agreed that "our traditional jurisprudence clearly recognizes that neither ownership nor control is the sole determinant of commercial landlord liability when obvious danger to an invitee is implicated." Id. at 417.

The Court observed that the principles established in Hopkins "resonate[d]" in Monaco. Monaco, supra, 178 N.J. at 417. The Court found that it was "inconsequential" whether "the classic commercial landowner liability standard... or the more fluid Hopkins rule" was applied because the result would be the same. Id. at 418. It concluded:

What is important in all of this is that Monaco is not attempting to hold Hartz responsible for something over which it had no control, but only for negligently failing to take such measures as were within its power and duty to protect its invitees from reasonably foreseeable danger. Given the nature of the cause of action, both lower courts were mistaken in concluding that because Hartz did not own the sign, it had no duty with respect to it. On the contrary, Hartz owed a legal duty to Monaco and it was for the jury to determine whether that duty was satisfied. [Id. at 419.]

It is not necessary, under the law governing liability for defects in sidewalks, that Moss opine on the liability of Maple specifically because that is an issue for the jury. It was sufficient that he opined that the planter created a tripping hazard because it was not noticeable. The planter curb was the same color concrete as the sidewalk, which surrounded it on three sides; was only two inches high on the edge abutting the sidewalk; and did not have any wickets or warnings to alert pedestrians to its presence.

After Monaco was decided, we addressed the issue of whether a commercial-property owner had a duty of care with respect to a tripping hazard in a grassy strip between the street curb and the sidewalk abutting his establishment in Bedell. There, plaintiff crossed Berkley Street in Camden on his newspaper delivery route. Bedell, supra, 367 N.J. Super. at 518. He stepped onto the curb, walked along it for a few steps, and turned left to cross the grassy strip separating the curb from the sidewalk. Ibid. As he did so, he tripped on a tree root and fell. Ibid. The grassy strip ran the entire length of the block without gaps for driveways or otherwise. Ibid. The tree itself had been cut down. Id. at 519. The trial court dismissed Bedell's claim, reasoning that the defendant had no duty to maintain the strip of land between the sidewalk and curb, which was not intended for pedestrian use. Ibid.

We summarized prior case law as holding that "sidewalks remain the responsibility of the adjoining commercial landowner and curbs not structurally an integral part thereof generally fall outside the scope of any legal duty...." Id. at 520. We noted that the specific issue before us was novel, id. at 520-21, but considered the issue in light of the Monaco Court's ruling that Hartz owed a legal duty to Monaco and "it was for the jury to determine whether that duty was satisfied." Id. at 523 (citing Monaco, supra, 178 N.J. at 418). We continued,

[T]he Court noted that the standard for imposition of a duty on commercial landowners has evolved from the common law methodology of premises liability, Mulraney[, supra], 293 N.J. Super. [at] 320-21..., to a more flexible approach based in "an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." [Monaco], supra, 178 N.J. at 418 (quoting Hopkins[, supra,] 132 N.J. [at] 439...). That inquiry, the Court explained, 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 solution." Ibid.

In determining the outer limits of a commercial landowner's liability, Stewart and its progeny counsel against too rigid an application of absolute rules, which appears to have been the approach taken below.

Indeed, the trial court, in dismissing plaintiff's complaint, stated in conclus[o]ry fashion that "the grassy strip [was] not meant for pedestrian use" and that defendant did "not have to maintain an area [that was] not meant for people to walk on."

Such a cramped view of the governing principles, however, cannot be reconciled with either the evolving standards for imposing a legal duty, or the facts of record. [Bedell, supra, 367 N.J. Super. at 523.]

After discussing two sister-state cases, we determined the issue before us as follows:

Here, taking into consideration all the surrounding circumstances, it cannot be said, as a matter of law that no legal duty attaches in this instance. Nothing in the nature of this grassy patch of land would per se absolve defendant from liability for injuries received thereon. Indeed, as the court noted in [Monaco], supra, "neither ownership nor control is the sole determinant of commercial landowner liability." 178 N.J. at 404.

Rather, the imposition of a duty of care in this case is consistent not only with the character of the unpaved plot as part of the sidewalk, but with considerations of fairness and public policy as well.

[Monaco], supra, 178 N.J. at 418; [Hopkins], supra, 132 N.J. at 439. The right of the public to safe and unimpeded passage along the sidewalk, Stewart, supra, 87 N.J. at 152, must, of necessity, include the right to safely reach the protection of the sidewalk from an unimproved strip of land immediately adjacent to it. Considered more closely connected with the sidewalk than the roadway, the unpaved plot of land, it is reasonably anticipated, will be traversed by members of the public. Having been provided the substantial benefit of easy access to its property, it is only fair that defendant be burdened with the duty to maintain the grassy strip in a reasonably safe condition so as not to present an unreasonable risk of harm. [Id. at 525-26.]

The judge here misperceived the essential inquiry when she found that the planter was not intended*fn11 for pedestrian traffic and concluded that Maple had no duty to warn pedestrians of any danger. The issue is whether, in light of all the circumstances, Maple had a duty to warn pedestrians about the presence of the partially constructed planter in the surrounding sidewalk where the low-profile corners of the planter were not noticeable because they were the same color as the sidewalk, which surrounded it on three sides; the planter was not planted with a tree or other vegetation; and the planter had no protective wickets installed to prevent pedestrians from walking across it or tripping over it. The planter intruded into the ten-foot-wide sidewalk in front of Maple's property by over five feet and, if the planter curb was not noticed, would cause someone walking on the sidewalk to trip and fall. Sandra Feldman crossed the street, stepped onto the curb, walked onto the sidewalk, and turned to the right to proceed along the sidewalk when she encountered the low-profile corner of the partially constructed planter.

"Owners of abutting property are in an ideal position to inspect sidewalks...." Stewart, supra, 87 N.J. at 518 (emphasis added). They are under a duty to warn of hidden defects regardless of whether they have the power to correct them or not. Monaco, supra, 178 N.J. at 404. It was for a jury to determine whether that duty was discharged here where Maple knew or should have known that no work had been done on the planters for many, many months and Summit had taken to action to either complete construction or place a suitable warning to pedestrians of the low-profile hazard in their path of travel. Little more of Maple was required than to drive a sufficiently tall stake into the four corners of the planter and attach warning tape from stake to stake or demand that Summit do so.

The judge also erred in concluding under the Hopkins analysis that imposing a duty on Maple to warn pedestrians of the tripping hazard was not an appropriate public-policy solution because it would mean that every commercial-property owner in downtown Summit was under the same duty. This led her to conclude that a district-wide solution by Summit or Scafar was required and that Maple had no duty to warn pedestrians of the tripping hazard. We disagree.

As the Hopkins Court explained, when determining the existence of a duty of care, "[t]he analysis is both very fact-specific and principled." 132 N.J. at 439. We must identify, weigh, and balance "several factors--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." Ibid.

Maple as a commercial establishment had a relationship with the public (and Sandra Feldman in particular) as potential invitees and licensees for Maple's tenants. It depends for its business of renting commercial space on the ability of the public to access the businesses of Maple's tenants by traversing the sidewalk. Indeed, one of the purposes of the SID was to promote economic growth and employment in the SID, a goal that would directly benefit commercial-property owners in the SID, including Maple.

The incomplete planter, which blended in with the sidewalk, presented an attendant risk of injury to the public traversing the sidewalk, including Sandra Feldman. This factor is entitled to substantial weight, particularly because the remedy, adequate warning of the risk, was so simple.

Maple had both opportunity and ability to exercise care to give warning to pedestrians of the obstruction in the sidewalk at very little expense to it--four stakes and some warning tape. Of course, the other parties had the same ability, but the opportunity of Marsellis and Scafar was more limited as they were not present on a daily basis and Maple, which was colocated with the planter, could clearly see that neither of the contractors nor Summit was acting to protect pedestrians.

Finally, the public clearly had an interest in being warned about obstructions in the middle of the sidewalk so that pedestrians could avoid the risk of tripping on the building-side corners of the planters.

In balancing these factors, we are satisfied that the interest of the public in safe passage along public sidewalks requires the imposition of a duty on Maple to give warning of the obstruction in the sidewalk caused by the partially constructed planter. We are not persuaded that the logical extension of this duty to other property owners in the SID militates against its imposition when the duty involves only a warning at very little expense to each commercial-property owner. We do not doubt that a SID-wide solution would have been preferable, but it did not happen and, thus, imposing a duty to warn on the abutting commercial-property owner "satisfies an abiding sense of basic fairness under all of the circumstances." Hopkins, supra, 132 N.J. at 439.

IV.

The judge granted summary judgment to Marsellis because Summit terminated the portion of the contract with Marsellis calling for the installation of the wickets. As a result, she concluded that Marsellis had no duty to complete the construction of the planters. This is obviously true, but the issue is not whether Marsellis was required by contract to complete the planters, but rather, whether it was under a duty to warn pedestrians of the tripping hazard when the wickets were deleted from its contract with Summit.

It is fairly obvious that Amsterdam recognized that leaving the planters in an incomplete state of construction created a hazard to pedestrians because he protested Summit's instructions to stop work. He urged that the excavated planters should be filled with soil.*fn12 Thus, Marsellis was aware of some risk to pedestrians and the issue becomes whether it was under a duty to warn the public of the tripping hazard created by the partially constructed planters before it left the project.

The only case cited by either the Feldmans or Marsellis respecting a duty of care at a construction site is Carvalho v. Toll Bros. & Developers, 143 N.J. 565 (1996).*fn13 The Feldmans urge that it is determinative and Marsellis urges that it is distinguishable because many months elapsed after it left the site before Sandra Feldman tripped on the corner of the planter and fell.*fn14

In Carvalho, a workman died when the unstable walls of a deep trench in which he was working collapsed on him. Id. at 569. The issue presented was whether the engineer, which had no contractual obligation to supervise safety procedures, and its inspector were under a duty to exercise reasonable care for the safety of workers on site when the engineer and inspector were aware that the site created a risk of serious injury to workers. Ibid. The engineer's inspector was present at the site on the date of the accident and was watching the decedent working in the trench before it collapsed. Id. at 572.

The Court summarized the factors to be considered by a court when it was required to determine the existence of a duty of care. Id. at 572-73. It pointed out that the foreseeability of harm is a significant, even crucial, factor in such a determination. Ibid. It stated that "foreseeability of harm and considerations of fairness and policy [under Hopkins] are connected." Id. at 573.

The Court found that it was foreseeable that workers in the trench were at risk of the trench collapsing and injuring them. Id. at 574. The Court also found that the relationship of the parties was contractual and the engineer's contractual duties implicated safety concerns. Id. at 575. Further, the engineer and its inspector had the authority to stop work if safety conditions could affect work progress and could take or require corrective measures to address those safety concerns. Id. at 576. Additionally, the Court observed, "The existence of actual knowledge of an unsafe condition can be extremely important in considering the fairness in imposing a duty of care." Id. at 576-77. These considerations led the Court to hold that both the engineer and its inspector owed a duty of care to the workers in the trench. Id. at 577-78.

We considered the tort duty of a contractor in Raimo v. Fischer, 372 N.J. Super. 448 (App. Div. 2004). Defendants Robert and Darleen Fischer hired defendant Parker Construction, Inc. (Parker), to construct a single-family house on property they owned in Surf City. Id. at 451. Parker in turn hired various subcontractors, including defendants Oceanside Builders and Remodellers, Inc. (Oceanside), and Nicholas Englebert. Ibid. On the day of the accident, Raimo and his brother went to the site to meet with Richard Partington, an Oceanside employee. Ibid. They received no answer after calling out to him and, when they heard hammering above them, they began to ascend the stairs, again calling out to him. Ibid. Someone responded that Partington was not there and Raimo and his brother then turned around and began to descend the stairs, but the staircase fell away from the house and Raimo was seriously injured. Ibid. Although the staircase had originally been secured to the house, it had been removed by Oceanside to permit some construction work and Parker placed it in the garage. On the day of the accident, Englebert arrived at the site, found the staircase in place, and used it seven or eight times before Raimo ascended the staircase, never checking to ascertain that it had been secured in place. Id. at 451-52.

The defendants moved for summary judgment, which was granted on premises-liability principles. Id. at 452. We reversed, concluding that general negligence principles governed the issue of a duty of care. We held:

The liability of a contractor for negligence in the maintenance of a construction site is not subject to the special rules of liability applicable to possessors of land; instead, a contractor has a duty to maintain the premises on which it performs work in a reasonably safe condition for persons who the contractor may reasonably expect to come onto the site. The discharge of this duty includes the performance of reasonable inspections to ensure that the construction site is in a safe condition. [Id. at 453 (citations omitted).]

We further noted, "The only type of tort cases in which our Supreme Court has continued to apply common law principles of premises liability are those involving claims against the owners of property used for non-commercial [sic] purposes." Id. at 454. After briefly discussing such cases, we observed: "However, in cases involving claims against the operators of commercial enterprises, our courts have applied general negligence principles in light of the factors set forth in Hopkins and applied in Carvalho and Alloway."*fn15 Id. at 455. We then held "that a contractor's duty of reasonable care under general negligence principles... is not limited to cases involving claims by subcontractors' employees but instead extends to any persons a contractor may reasonably expect to come onto a construction site, regardless of their classification under the law of premises liability." Id. at 456. We concluded that "Englebert had a duty of reasonable care for the safety of persons who he could reasonably expect would come to the construction site on the Fischers' property, which included ensuring that the temporary staircase he was using to perform his work was properly attached to the house." Id. at 456-57.

While Marsellis was in control of the project, it was under a duty to exercise reasonable care for the safety of pedestrians on the construction site. However, we are satisfied that Marsellis was relieved of any further duty to pedestrians once the wickets were removed from its contract, it notified Summit of the tripping hazard, and Summit specifically instructed Marsellis to simply fill the planters to the top of the planter curbs and plant ivy. By that time, Summit was in control of the project and Marsellis was not authorized to take any further measures. As a result, we affirm the summary judgment in Marsellis's favor as no triable jury issue existed.

V.

With respect to the liability of Summit for the injuries sustained by Sandra Feldman, the judge concluded as a matter of law that the planter was not a dangerous condition because it was not intended to be a means of egress or ingress. She also concluded that the conduct of Summit was not palpably unreasonable because the planters were not so intended and because the scope of the project was so large that no reasonable juror could find that the delay in installation of the wickets was patently unreasonable.

Summit, of course, is entitled to the immunities conferred by the TCA, as the judge recognized. It provides generally:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person. [N.J.S.A. 59:2-1.]

Because the Feldmans allege a defect in public property, the liability of Summit is governed by N.J.S.A. 59:4-2, which provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

A "dangerous condition" of public property "means a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a); see also Garrison v. Twp. of Middletown, 154 N.J. 282, 286-87 (1998). Generally, the determination of whether public property is in a dangerous condition is a question for the finder of fact. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001) (citations omitted); Roe v. N.J. Transit Rail Operations, 317 N.J. Super. 72, 77-78 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999). We recognize that this fact question is subject to a judicial assessment of whether a reasonable fact finder could conclude from the evidence that the property was in a dangerous condition. Vincitore, supra, 169 N.J. at 124.

In considering the issue of whether the public property was in a dangerous condition, the judge focused only on whether the partially constructed planter was in a dangerous condition and concluded that it was not because it was not intended as a means of ingress or egress. This focus was too narrow and the planter was not being used for such a purpose. As we have previously observed, the issue was whether an unguarded, not readily noticeable, partially constructed planter with a low-profile planter curb and no trees or vegetation, surrounded on three sides by sidewalk, which projected over five feet from the curb into the ten-foot-wide sidewalk, created a dangerous condition in the sidewalk being used by Sandra Feldman as she stepped onto the curb, walked on the sidewalk, and turned right toward the location where her car was parked.

It hardly seems debatable that it created a substantial risk of injury. There is no suggestion in the record that Sandra Feldman was not using the sidewalk with due care in a reasonably foreseeable manner. As a consequence, we cannot say as a matter of law that the public property was not in a "dangerous condition" given the planter's incomplete state of construction and its location in the middle of the public sidewalk.

We also cannot say as a matter of law that the failure of Summit to take action to protect against the dangerous condition by timely completing construction of the planters or giving adequate warning of their presence in the sidewalks was not palpably unreasonable under N.J.S.A. 59:4-2. See, e.g., Vincitore, supra, 169 N.J. at 130; Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 191 (2002) ("[A] jury could conclude that it was palpably unreasonable for the [public entities] not to warn or otherwise protect against the dangerously deep pond of which they had actual notice" and in which plaintiffs' twelve-year-old child drowned.). The record on appeal does not reflect the reasons for the ten-month delay after July 23, 2002, in installing the wickets. Thus, there is no record support for the judge's conclusion that no reasonable juror could find that the delay in installing the wickets was patently unreasonable.

Furthermore, the judge failed to consider the issue of whether the conduct of Summit could reasonably be found by a fact-finder to have been palpably unreasonable because Summit took no action to warn pedestrians on the sidewalks of the tripping hazard presented by the partial construction of the planters. Summit was told by Amsterdam in or about July 2002 that the partially constructed planters presented a hazard to pedestrians. This was actual notice to Summit of the dangerous condition as required by N.J.S.A. 59:4-2(b) and ten or more months between notice and accident was more than sufficient to permit Summit to take measures to protect against the dangerous condition. Ibid. It was for a jury to decide whether Summit's action in electing to fill the planters with dirt without erecting any type of barrier to warn pedestrians of the tripping hazard created by the low-profile planter curbs was palpably unreasonable or not. We are satisfied that the judge should not have dismissed the Feldmans' action against Summit as a matter of law.

VI.

For the foregoing reasons, the summary judgment in favor of defendant Marsellis is affirmed but the summary judgments granted in favor of Maple and Summit are hereby reversed and the matter is remanded for trial on the merits. We do not retain jurisdiction.


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