On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1942-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Colonia Girls Softball League (the League) appeals from a September 22, 2008, order for judgment in favor of plaintiff Dori St. George finding the League fifty-one percent at fault for plaintiff's trip-and-fall accident on property owned by defendant Woodbridge Township Board of Education (the Board) and awarding net damages of $127,500, plus attorneys' fees and expenses pursuant to Rule 4:21A-6(c)(3) and (4) in the amount of $1250 and prejudgment interest in the amount of $18,525.75. We now reverse.
On Monday, May 23, 2005, at about 1:45 p.m., plaintiff was walking her dog on a sidewalk between two ball fields at the back of the Board property used by the Colonia Middle School during weekdays for school activities and on evenings and Saturdays by the League for practices and games, which are open to the public. At the time of her fall, there was an existing concession stand and a pavilion being constructed by the League close to the concession stand. There was a "handshake" agreement between the Board and the League that the League would clean up after itself after games and practices and after any work was done on the pavilion.
Plaintiff had walked down this sidewalk with her dog several times a week for approximately eight years without any incidents or complaints. On the day of the accident, plaintiff walked down the sidewalk from behind the school and past the concession stand. As plaintiff did so, she noticed that the construction area was "a little bit messy" and saw ten to fifteen small rocks, up to one-half inch in diameter, and debris around, which she was able to avoid as she walked up to the pavilion. She observed teachers and children taking gym classes who were running around to the right and left of the sidewalk beyond the pavilion and concession stand.
The pavilion has a concrete pad, posts, and a roof, but no side walls. The concrete pad is elevated above the sidewalk. There are five posts each along the front and back of the pavilion and one post at the center of each side. The slope between the sidewalk and the concrete pad from the right front corner post to the fourth front post is paved with macadam. The slope between the sidewalk and the concrete pad from the fourth post to the left front corner post is covered by a raised landscape-block planter filled with soil and mulch. The strip between the left side of the pavilion and the ramp to the concession stand is also macadam. Picnic tables are located on the concrete pad beneath the roof.
Plaintiff saw Teddy Markou, the League volunteer in charge of construction and preparing the fields for softball games, standing toward the rear of the pavilion and saw the gym classes further along the sidewalk. She stopped to speak with Markou for about four minutes. She remained on the sidewalk at all times, standing where the sidewalk was cracked. After this brief conversation, plaintiff picked up her right foot, turned to her left to return in the direction from which she had come, stepped on a rock with the back of her left foot, and fell on the left side of her body, landing on her left elbow. On cross-examination, she testified she turned to her left, picked up her right foot to take a step, and stepped on a rock with her right foot. As a result of her fall, plaintiff suffered a comminuted fracture of the left radial head that required a metal radial-head joint implant. She has a significant scar along her forearm and elbow from the surgery.
Plaintiff testified that she fell on the sidewalk toward the right front of the pavilion, not on the sloped macadam or in the pavilion and not in front of the planter. She stated that there had been orange fencing surrounding the pavilion construction and sidewalk; when it was present, she never walked down the sidewalk. None of the orange fencing was up on May 23, 2005, and she thought the construction had been completed.
When plaintiff returned to photograph the area of her fall ten days later, the sidewalk had been cleaned up. She brought some small pieces of broken concrete to recreate the condition of the sidewalk in the photographs. She admitted that she did not know how the little rocks got on the sidewalk or how long they were there. She also admitted that the parking lot between the back of the school building and the concession stand was gravel or broken stone, not paved, although she had parked in front of the school.
Plaintiff's expert, Ronald L. Saxon, P.E., testified that removing the orange fencing that had blocked the sidewalk prior to plaintiff's fall was a violation of the International Property Maintenance Code, as adopted by the Township of Woodbridge. Those standards "require that areas be kept free of hazards . . . and they're performance oriented as opposed to descriptive oriented so they say must be kept free of hazards such as debris, obstructions, things like that, open holes, things like that." He went on to elaborate that rocks on the sidewalk were "prohibited by the code that was enacted."*fn1 The removal of the fencing implied that the area was safe for pedestrians. He asserted that the League, [b]eing responsible for the construction[,] knew of hazards at the site, knew of all of the various hazards that might exist at a construction site and had taken precautions to barricade it at some time. So they had anticipated the problem. Therefore, in anticipation of the problem and know[ing] that people would normally be using the area if it weren't barricaded, they were in a [position] to foresee that debris in the area or any other condition would present a hazard to those individuals and they should have done something about it. There are several things they could have done. One thing is to have removed the debris, police[d] the area. Another is to have avoided getting it there in the first place, but essentially because of the nature of the site and the nature of the debris, rocks in an area, regardless of where the rocks came from and how they got there, whether they were rocks or broken pieces of concrete, had the barricade that had originally been there for a good reason been left there then access to the area would have been precluded and [plaintiff who] had said she had already evaded the barricade wouldn't have been where she was if she fell.
Saxon opined that the "absolute cause" of the fall was the rock, but a "causation" was the lack of a barricade. During cross-examination, Saxon admitted that most of the pavilion had already been constructed when the photographs were taken,*fn2 but that did not change his opinion. He pointed out that Markou testified in his deposition that he had seen children tossing small rocks around and that they got rocks from behind the pavilion, although he denied seeing any construction debris. He also noted that Markou admitted in his deposition that he and Ellen McDonald were responsible for putting up barricades blocking the sidewalk whenever they were engaged in construction, and Saxon asserted that the barricades should have remained in place when construction was ongoing.
Markou testified at trial that he spent fifteen to thirty hours per week volunteering for the League. The work on the pavilion started in the fall of 2004 with donated materials. On the day of the accident, the pavilion was eighty-five percent complete. They still needed to apply shingles, paint the posts, and install soffits and gutters. None of the work to be done involved the use of rocks. Most of the work was done on Saturdays, and before any work was done, they would put garbage cans in the grass and put up caution tape. Nothing ...