January 2, 2009
BOBAN JOVANOVIC AND ROSA JOVANOVIC, PLAINTIFFS-APPELLANTS,
C&S MOTOR CORP., DEFENDANT, AND GIRARD LUKOWIAK, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2193-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Carchman and Simonelli.
Plaintiffs Boban Jovanovic*fn1 and Rosa Jovanovic appeal from a July 22, 2005 order of the Law Division granting summary judgment dismissing their complaint against defendant Girard Lukowiak*fn2. Plaintiffs also appeal from the October 14, 2005 and December 16, 2005 orders of the Law Division denying plaintiffs' motions for reconsideration. We affirm.
These are the relevant facts related to this appeal. On June 10, 2001, plaintiff, accompanied by his seventeen-year-old daughter, traveled to Newark for the purpose of looking at used cars. Although the business was closed, plaintiff stopped at the premises occupied by C&S Motor Corp. (Motor Corp.) located at 525 McCarter Highway. Plaintiff and his daughter looked at cars through a fence surrounding the property, and after being distracted by a passer-by seeking money, plaintiff turned and fell on a sign located immediately adjacent to the fence. The sign contained the legend "C&S Auto Sales" (Auto Sales). According to the deposition of Armando Conceicao, a principal of both Motor Corp. and Auto Sales, the three signs*fn3 had been removed and placed on the ground along a fence line on June 9, 2001, one day before the accident.
A critical issue disputed by plaintiff involved the status of the lease agreement between Motor Corp. and defendant. Discovery revealed that in June 1996, defendant entered into a lease agreement with Conceicao and Fernando DaSilva, partners doing business as Auto Sales. That partnership failed to survive, and Conceicao formed Motor Corp., a corporation doing business at the McCarter Highway location. Despite plaintiff's challenge to the bona fides of the relationship, both defendant and Conceicao agreed that the lease arrangement previously entered into between defendant and Auto Sales continued in force with Motor Corp. continuing to pay the rent and maintaining exclusive control of the premises.
On defendant's original motion for summary judgment, the trial judge dismissed the complaint focusing on the tenant's exclusive possession. On plaintiff's motion for reconsideration, the judge shifted her focus and limited her reasoning to the issue of actual or constructive notice. She concluded:
2. As to the second issue however, Mr. Jovanovic fails to establish that Mr. Lukowiak had either actual or constructive notice regarding the dangerous condition present on his property. In order to recover in a sidewalk negligence case, a plaintiff has to also establish that the owner had actual or constructive notice regarding a dangerous condition affecting the sidewalk, and failed to act. Mirza v. Filmore, 92 N.J. 396 (1983). In the present case plaintiff fails to bring forward any evidence showing that the landlord had either actual or constructive notice. Therefore, the motion for reconsideration is hereby DENIED.
This appeal followed.
On appeal, plaintiff asserts that the motion judge erred by concluding that there was a valid lease, that plaintiff was denied due process, that the judge erred by concluding that defendant was a landlord "out of possession" and that there were material facts in dispute.
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of 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). Our inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986))). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540). See also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div. 2006), certif. denied, 189 N.J. 103 (2006).
We apply the same standard as the trial court in reviewing the granting of motions for summary judgment, EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp., supra, 142 N.J. at 445-46) and we review the lower court's decision de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div. 2008), certif. denied, 196 N.J. 85 (2008)(citing Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). If then there is no genuine issue of material fact, we must "determine whether the trial court correctly interpreted the law." Massachi v. AHL Services, Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citing Prudential, 307 N.J. Super. at 167).
Initially, we note our agreement with the motion judge, who on the motion for reconsideration, questioned her prior decision as to the responsibility of a landlord for defects or dangerous conditions on the sidewalk. More significantly, given the facts of this case, we likewise agree that the absence of actual or constructive notice is fatal to plaintiff's claim, and the judge properly granted summary judgment.
Without addressing the context of the lease of the entire property, the general rule is that commercial landowners are responsible for maintaining public sidewalks abutting their property in a reasonably safe condition. Mirza v. Filmore, 92 N.J. 390, 394 (1983). See also Brown v. St. Venantius School, 111 N.J. 325, 327 (1988); Bedell v. St. Joseph's Carpenter Soc., 367 N.J. Super. 515, 519 (App. Div. 2004); Dupree v. City of Clifton, 351 N.J. Super. 237, 241-42 (App. Div. 2002), aff'd, 175 N.J. 449 (2003). That obligation also includes cleaning up such sidewalks within a reasonable time. Mirza, supra, 92 N.J. at 394. However, this duty is tempered by the requirement that the commercial owner must have actual or constructive notice of such condition and will incur liability if the owner fails to act "in a reasonably prudent manner under the circumstances to remove or reduce the hazard." Id. at 395. See also Monaco v. Hartz Mountain Corp. 178 N.J. 401, 415-16 (2004) (discussing factual circumstances giving rise to a duty to inspect and maintain street signs located on the sidewalk). In Monaco, the Court noted that "neither ownership nor control is the sole determinant of commercial landlord liability when obvious danger to an invitee is implicated." Id. at 417. Ultimately, "fairness under all of the circumstances in light of considerations of public policy," id. at 418, will determine whether this landlord owed a duty of care to plaintiff.
The unique facts presented here compel us to conclude that the issue of notice dominates the ultimate resolution. Despite plaintiff's speculation that the signs were removed and placed on the sidewalk some seventeen months before the accident, nothing in the record, short of his speculation, supports that premise. The only probative evidence appearing in this record is that on Saturday June 9, 2001, the signs were removed, and the used car lot was closed the next day. On these facts, we cannot conclude that defendant failed to act in a reasonable manner or to state the converse, we conclude that his failure to inspect within this twenty-four hour period, when the premises were closed, was not unreasonable. Nothing in this record provides any support for the proposition that defendant had any notice, actual or constructive, that would support liability.
We conclude that the motion judge correctly dismissed plaintiff's complaint.