On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-04-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and C.L. Miniman.
Plaintiffs Maria and Neil Raimo appeal from a summary judgment in favor of defendant 3332-34 West Avenue Condominium Association dismissing their personal injury claims against it.*fn1
On August 7, 2005, plaintiffs were guests at a condominium unit located at 3336-38 West Avenue, which is immediately next door to defendant's property. At the end of their evening visit around 9:00 p.m., Mr. Raimo left to get their car. Mrs. Raimo exited the front door of 3336-38 West Avenue, thinking her husband was out front. She walked down the steps, and when she did not see him, made a right turn and walked around to the back of the building to look for him in the rear parking area. She did not find him there so she decided to return to the front of 3336-38 West Avenue by walking across the grass at the back of 3336-38 West Avenue and turning right to step onto the sidewalk between the buildings at 3336-38 and 3332-34 West Avenue. As she did so, her left "sneaker jammed under the concrete" and she fell against defendant's building, hitting her hand, elbow, and shoulder, and then fell to the ground. Plaintiff sustained serious and permanent injuries as a result.
Photographs of the rear of the two properties depict a strip of concrete sidewalk passing in front of two trash cans at the back corner of defendant's property and making a ninety-degree left turn to run along the side of defendant's property all the way to the front of the property where it meets the front sidewalk. This concrete sidewalk is edged by grass on both sides.
Plaintiffs' expert, Gerald P. McBrien, observed that the ground between the sidewalk and defendant's building was flush with the surface of the sidewalk, but the ground on the opposite side where Mrs. Raimo fell was two to four inches below the sidewalk's surface. McBrien also noted there were no gutters or downspouts on defendant's property to carry rainwater away from the side of the building and there was no lighting on the side to shed light on the sidewalk. He surmised that the final grade of the property had washed away. He opined that these three conditions made the sidewalk unsafe.
Defendant's expert, John J. Hare, issued two reports. His initial report, based on the land and the master plans for the property in question, indicated that the property line runs along the edge of the sidewalk. He acknowledged the grade differential, but opined that the building code permits a difference in grade elevation between two properties and a retaining wall up to eighteen inches without a fence. A difference of three and one-half inches does not require a fence. He further opined that it was the responsibility of the town to provide adequate illumination, not defendant. Additionally, "[t]here is no code or standard that requires a warning sign to indicate a sidewalk or a change of grade at a property line." He observed that Mrs. Raimo was not lawfully using defendant's property. He opined that (1) defendant's property was not a commercial rental unit; (2) the properly installed sidewalk was not dangerous; (3) no code or standard required any delineation of the edge of the sidewalk or any warnings; (4) no code or standard required defendant to provide proper lighting levels; and (5) no code or standard prohibited a change in elevation in grade between two properties. In his rebuttal report, Hare asserted that O'Brien was not qualified as an expert to express the opinions he advanced. He then rebutted most, if not all, of O'Brien's statements and opinions.
The parties disputed whether the property line abutted the sidewalk, leaving the declivity on the property of 3336-38 West Avenue, or whether it was some distance from the edge of the sidewalk, leaving the declivity on defendant's property. Mrs. Raimo expressed the belief that the sidewalk between the buildings was a shared sidewalk and asserted that she disputed the ownership of the property on which the defect existed.
Carol O'Loughlin, the condominium unit owner on the first floor of 3332-34 West Avenue, testified that the sidewalk was on her property and was a common area for each of the two units in her building. She understood that the outer edge of the sidewalk was on the centerline between the two buildings. She did not believe that even an inch of property beyond the edge of the sidewalk was on defendant's property.
Deanna Louise Clymer, who owns the second-floor unit in defendant's building, also testified that the common areas included the sidewalk between the two buildings. She testified that when she learned of Mrs. Raimo's trip and fall, she walked down the sidewalk and observed the grading on the property at 3336-38 West Avenue had sunk or settled near the back corner of the sidewalk and at other places along the edge as well.
Defendant's landscaper never brought these depressions to her attention. She, too, understood the property line to be at the edge of the sidewalk with the grass beyond the sidewalk belonging to 3336-38 West Avenue. Defendant does not maintain that grass, maintaining only the small strip between the sidewalk and defendant's building. Clymer testified she learned the sidewalk was on the property line from the builder, third-party defendant Halliday and Leonard.
Defendant moved for summary judgment on January 8, 2009, asserting that it was under no legal duty to correct any of the conditions plaintiffs claimed contributed to Mrs. Raimo's accident. Defendant asserted that the sidewalk is located along the property line between the two buildings; that the height differential was located on the property of 3336-38 West Avenue; and that plaintiff's expert attributed that differential to improper grading of the yard at 3336-38 West Avenue.
Plaintiffs opposed the motion on January 23, 2009. They denied that the property line was along the edge of the sidewalk because "there has been no formal survey proving the actual line of delineation between the two (2) properties." They contended that the height differential either was created when the sidewalk was installed or over a period of time thereafter as a result of improper grading, improper runoff and drainage of rainwater, swelling of the concrete due to improper ground water drainage, inadequate lighting of the area, and other causes. They asserted that Mrs. Raimo was caused to trip and fall over the sidewalk and that the height differential was obscured by the grass in the yard of 3336-38 West Avenue.
In addition to the expert reports and deposition testimony we have described above, plaintiffs and defendant submitted the pleadings; multiple photographs of the property; certain current and proposed revisions to the Americans with Disabilities Act Accessibility Guidelines*fn2; Architectural Graphic Standards; the proposed plot layout prepared by George Wray Thomas, Registered Architect, for defendant's property showing the edge of the sidewalk on the property line; the tax map of the town on which the defendant's property is depicted; a final as-built survey of 3332-34 West Avenue dated June 28, 2003, depicting the edge of the concrete sidewalk as coextensive with the property line; and a certificate of insurance for the property issued to defendant.
Judge Daryl Todd heard oral argument on February 6, 2009, and issued a written decision that day. He reviewed the legal standards governing summary judgment, negligence, and duty. He inferentially found the property line began at the edge of the sidewalk based on the expert reports and concluded Mrs. Raimo was caused to fall by the declivity in the neighboring property. He found defendant had no duty to maintain the land of a neighboring property and was entitled to summary judgment because the duty would be that of 3336-38 West Avenue Condominium Association, which had not been named as a party.
Plaintiffs moved for reconsideration on February 17, 2009. They submitted additional portions of Mrs. Raimo's deposition, some additional photographs, and the deposition of Keith Leonard, all of which had been available to plaintiffs at the time they filed their opposition to the summary judgment motion. The additional portions of ...