July 20, 2010
THOMAS E. ROBERTSON AND MARY ROBERTSON, PLAINTIFFS-APPELLANTS,
COUSINS WHOLESALE PRODUCE, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3898-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2010
Before Judges Carchman and Parrillo.
Plaintiff Thomas Robertson*fn1 appeals from the Law Division's summary judgment dismissal of his negligence complaint against defendant Cousins Wholesale Produce, Inc. (Cousins). We affirm.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff, an agricultural produce grader employed by the United States Department of Agriculture, had been to defendant's facility in Lakewood on six to eight previous occasions to inspect shipments of produce purchased by Cousins. At defendant's request, on May 5, 2005, plaintiff arrived at defendant's premises to inspect a shipment of onions stored in a building that was part warehouse and part machine shop. Upon arrival, plaintiff parked his vehicle in the back lot and entered the rear of the building through one of two of his usual means of access and exit - a garage door and an adjacent smaller door (back door), both of which afford entrance into the building from the ground level. In addition, there is a bay leading directly to a three-foot down ramp and loading dock. Plaintiff knew of this condition from his previous visits to defendant's facility and was aware that this passageway was not level with the parking area.
After inspecting the onion shipment, plaintiff went to defendant's office, which was accessible from the warehouse area, to print the results of his inspection and deliver them to the office manager. Having spent about one-and-one-half hours in the building, plaintiff was ready to leave. He proceeded to the rear of the building where the "ramp door" was opened. Contemplating his next assignment and carrying his printer and computer, plaintiff walked through plastic hanging wind blockers, instead of the exit door he usually used, without stopping to make any observations.*fn2 He continued walking out the loading dock platform, past diamond plate flooring, where he fell off the platform and sustained a fractured heel.
Alleging a failure to warn created a dangerous condition, plaintiff sued defendant in negligence. Following defendant's answer and discovery, defendant moved for summary judgment. In granting the relief dismissing plaintiff's complaint, the motion judge concluded:
Here, I would tell you I was confused about . . . the nature of this door that the plaintiff . . . walked out of. I mean . . . I think it was initially portrayed as a door. It's . . . not a door. I have the supplemental opposition . . . -- the reply to the opposition submitted by defendant, . . . which attaches the photographs that were omitted initially, and it's really not a door -- it's not a door, . . . it's a loading dock.
So it's not that he's stepping out the door -- and -- stepping out an exit door and going down three feet. He chose . . . to walk out the loading dock, . . . and I have photographs that are attached . . . and have been provided. There . . . are -- for the record, to describe it, there's large plastic strips that . . . hang from this door, indicating that it's . . . a bay through -- for a loading dock, there's the diamond plated steel plate on the floor that is just beyond that that's observable that indicates that -- really does indicate that you're walking -- you're not just walking out and continuing on the platform, but you're really walking out to the loading dock and I mean you can argue that he could forget, but there is an exit door and attached to the photographs there's . . . an exit door.
Here, I find and I believe that there are no material issues of fact that prevent the court from deciding as a matter of law. Here, there is no evidence of negligence on the part of the defendant. Defendant's obligation is to . . . exercise the ordinary care to render the premises reasonably safe for the purposes embraced in the invitation to the invitee and to take such steps as a reasonably prudent person would to correct or give warning of hazardous conditions or defect[s] actually known to the landowner or occupier of the land, and -- or hazardous conditions or defects that would have been discoverable with reasonable care, and here there are no hidden hazards. This was a loading dock. It's -- again, it's not a door, it's not something disguised as a door, it's a loading dock. . . . I don't think you could have any bigger sign than the giant plastic strips -- transparent plastic strips that are hanging from the door indicating that it's a loading dock, the steel plating -- diamond plating underneath indicates that that's the ledge for the drop off of a loading dock. The plaintiff had been to the location on prior occasions, in fact his certification says he has been to numerous, over the years and in the course of his employment, loading docks. He tries to make a distinction, in this case a distinction without . . . a real meaning, but he just walked out . . . the loading dock and fell, . . . and I don't find any basis of liability -- factual basis or legal basis for the position of liability here.
"A negligence cause of action requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). "The duty of an owner or possessor of land to a third person coming onto his property derives from the common law." Parks v. Rogers, 176 N.J. 491, 497 (2003) (footnote omitted). "The scope of the landowner's duty is defined by that person's status as a business visitor, social guest, or trespasser." Ibid. "An invitee, in the legal sense, is 'one who is on the premises to confer some benefits upon the invitor other than purely social.'" Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div.) (quoting Daggett v. Di Trani, 194 N.J. Super. 185, 189-90 (App. Div. 1984)), certif. denied, 174 N.J. 361 (2002). The owner or occupier of a premises owes a duty to an invitee "to provide a 'reasonably safe place to do that which is within the scope of the invitation.'" Ibid. (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)). "The duty includes the obligation to 'use reasonable care to make the premises safe, including the duty to conduct a reasonable inspection to discover defective conditions.'" Ibid. (quoting Handleman v. Cox, 39 N.J. 95, 111 (1963)). The duty to render the premises reasonably safe for the purpose embraced in the invitation includes a duty to provide a reasonable means of ingress and egress to and from the premises. See Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000) (same). Generally, a landowner's duty of care is non-delegable. Jimenez v. Maisch, 329 N.J. Super. 398, 402 (App. Div. 2000).
Here, it is undisputed that defendant provided safe ingress to and egress from its warehouse facility, as plaintiff used these means during every previous visit to defendant's premises without incident. Although plaintiff counters that the "ramp door" exit was unusually designed and therefore in need of signage warning of the three-foot drop, plaintiff has offered no expert proof of either improper design, a hidden or dangerous condition or the necessity for signage. To the contrary, plaintiff was aware of the loading dock and of the three-foot drop-off, yet chose that passageway over the two clearly marked exit doors he used in the past. Moreover, his passage through plastic strips while traversing metal plating on the floor clearly alerted plaintiff that he was entering a loading dock area.
We emphasize that the mere happening of an accident does not alone give rise to an inference of negligence. Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40 (1951)). Rather, there must be a duty owed the injured party and a breach of that duty to establish negligence. Siddons, supra, 382 N.J. Super. at 13. As noted, the basic duty of a "proprietor of premises to which the public is invited for business purposes of the proprietor" is to exercise reasonable care to see that one who enters his "premises upon that invitation" has a "reasonably safe place to do that which is within the scope of the invitation." Butler, supra, 89 N.J. at 275. Whether a defendant has furnished an invitee with a reasonably safe place for his use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would become aware of the condition and protect himself against it. See Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961). Not every property condition on which persons can hurt themselves is unreasonably dangerous or hazardous. If ordinary persons who are likely to encounter a condition may be expected to take reasonable care without further warnings, and if the condition is plainly visible with no unusual features and in a place where they would naturally look for it, then the condition is not unreasonably dangerous.
Here, as found by the motion judge, defendant provided plaintiff other means of safe egress from the facility, yet plaintiff chose an exit with a physically obvious condition, of which he was fully aware, and which could have been encountered safely without further precautions or warnings. Given the undisputed facts, we find no negligence as a matter of law.