On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-23-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Coburn.
Plaintiffs sued for personal injuries sustained in a sidewalk trip-and-fall accident on defendant's property, which is a residential condominium complex. Initially, plaintiffs' complaint alleged negligence. During discovery, plaintiffs learned that under the circumstances of this case, they would have to prove gross negligence to succeed. Consequently, they moved to amend the complaint to allege gross negligence. Defendant responded with a motion for summary judgment. Although the trial court denied the motion to amend the complaint, it treated the case as if gross negligence had been alleged and granted defendant's motion for summary judgment. The basis of the ruling was plaintiffs' failure to produce any facts that would support a finding of gross negligence.
Plaintiffs filed a timely notice of appeal on December 11, 2008. Subsequently, plaintiffs moved to vacate the dismissal as to the fictitious defendants and add as a defendant Prime Management, Inc. ("Prime Management"). The trial court entered an order denying the relief sought. Plaintiffs then filed an amended notice of appeal to include the trial court's refusal to allow the addition of Prime Management as a defendant.
The Fernicolas owned and lived in a condominium unit at Pheasant Run at Barnegat, an adult community. On January 10, 2006, Joseph Fernicola tripped and fell over a raised portion of the sidewalk in a common area. He and his wife testified that the height differential between the two slabs of the sidewalk was two inches and that in general the sidewalks were not in good repair. Plaintiff's engineering expert opined that the elevation differential "was not just the typical trip hazard of an elevation differential between two concrete slabs, but a grossly unsafe condition because of the separation of the two slabs that created a gap of entrapment that captured the foot and caused the individual to lose balance and to fall." He said that a differential of one-half inch "must be treated with ramped edges to transition the elevation differential." He also said that the "failure to even mark such a condition with spray paint showed a gross disregard for safety."
A representative of Prime Management, the company that manages the property for the homeowners' association, testified that based on photographs taken of the scene, she believed that repairs were not warranted. She also noted that the company had an employee inspect the common elements about three times a month. The bylaws of the homeowners association provide, in pertinent part, as follows:
The Association, its Board, its Committees and its agents are not liable in any civil damages action which is brought either by or on behalf of a Unit Owner or her/his spouse for bodily injuries sustained by the Unit Owner or her/his spouse on the premises of the community. . . . This provision does not apply to any action in which bodily injury is caused by the Association's willful, wanton or grossly negligent act or omission.
Since the case was dismissed on summary judgment, we must consider the facts and reasonable inferences in a manner favoring the non-moving parties. Jenkins v. Anderson, 191 N.J. 285, 305 (2007). In these circumstances, that entails acceptance of plaintiffs' description of the accident and their expert's opinions respecting the hazard confronted. It also requires that we assume that defendants knew or should have known of the sidewalk's condition long enough before the accident to have fixed it.
In granting summary judgment, the trial court considered the evidence carefully, including plaintiffs' expert's photographs of the scene of the accident. The trial court found that "the sidewalk appears to be in remarkably good condition but for the fact that the panel ...