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Ocampo v. Famco

October 5, 2010

PAOLA OCAMPO, PLAINTIFF-APPELLANT,
v.
FAMCO, LLC,*FN1 AND ELITE MANAGEMENT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1417-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2010

Before Judges Parrillo and Yannotti.

Plaintiff Paola Ocampo appeals from the summary judgment dismissal of her personal injury negligence complaint against defendants Famco, LLC and Elite Management. We affirm.

The material facts are not in dispute. On October 11, 2004, sixteen-year old plaintiff fell from a second-story bedroom window in a Bergenfield apartment where she was living with her parents and which was owned and managed by defendants. The window from which she fell was closed but, according to plaintiff's expert, had a non-functioning lock and no screen. Although plaintiff has no recollection of what caused her to fall, she apparently was sleepwalking at the time. Plaintiff claims she has a history of sleepwalking, although she has never been diagnosed with, or treated for, this condition. And although her parents supposedly informed building maintenance of the malfunctioning window lock, it is undisputed that defendants were unaware that plaintiff was a sleepwalker. Nor did defendants ever have reason to know of her claimed condition, much less that plaintiff might attempt to climb out a closed window while sleepwalking. Indeed, there is no evidence to suggest that plaintiff ever injured herself while sleepwalking prior to this incident or that she previously opened doors or windows while in that condition. Although disputed by plaintiff's medical expert, defendant's expert opined that sleepwalkers are capable of performing a variety of tasks, including elaborate automatic motor behaviors such as unlocking locks and consequently, a locked window would not have prevented plaintiff's fall.

Plaintiff sued defendants for injuries allegedly sustained in the fall. Following discovery, defendants moved for summary judgment, which the trial court granted, concluding, as a matter of law, that defendants did not breach their duty of care to plaintiff and that the malfunctioning window lock was not the proximate cause of plaintiff's accident, which was unique and therefore not foreseeable. The judge reasoned:

And I know the defense position here is that, like the case he cites, there really -this case is very unique, and this issue of the locks the Court would resolve this way by saying I agree with the defense that the locks are to keep people out. They are for safety, there's no question about that, and - and that's what was testified to, and I know there's some expert testimony with respect to these locks.

However, I do regard, and I truly adopt most of the defense argument with respect to my decision on this motion for summary judgment. It - being the case that this was a sleepwalker, that condition was not known, and there's no medical evidence regarding that issue. And she fell from the window. It - there is no, as I can claim it, no real reasonable explanation with respect to that fall. Such that it causes the Court to say . . . there's a material issue in dispute as to whether this defendant is negligent, or liable for the accident.

Because of the uniqueness of this particular case, and because the Court will say that I do, as I said before, agree with the defense argument and adopt those arguments in my own findings, I am moved to grant the defense motion for summary judgment for the reason stated.

We concur in this result.

The standard for summary judgment is "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Yet "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. On appeal of a grant of summary judgment, the court applies the same standard as the judge below, deciding first whether there was a genuine issue of material fact and, if not, whether the lower court's ruling on the law was correct. Alloway v. Bradlees, Inc., 157 N.J. 221, 231-32 (1999).

In order to bring a successful suit for negligence, the plaintiff must demonstrate a duty, the breach thereof and proximate, or legal, cause of the plaintiff's injury. Caputzal v. The Lindsay Co., 48 N.J. 69, 74 (1966). "The test of negligence is 'whether the reasonably prudent person at the time and place should recognize and foresee an unusual risk or likelihood of harm or danger to others.'" Scully v. Fitzgerald, 179 N.J. 114, 125-26 (2004) (quoting Trentacost v. Brussel, 82 N.J. 214, 222 (1980)). Summary judgment may be appropriate if there is no legal basis for finding the existence of a duty or where defendants were not the proximate cause of plaintiff's injuries. Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 540-41 (1997) (remarking that courts have rejected liability as a matter of law in unique cases of "highly extraordinary consequences").

Foreseeability as a determinant of duty must "be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury." Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502-03 (1997). In the context of the duty determination, foreseeability is the knowledge of the risk of injury to 'be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken ...


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