On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2322-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Grall, Alvarez and Skillman.
At approximately 11:00 p.m. on October 4, 2007, plaintiff Jeanette Buckley walked out of her first-floor rented apartment in the Borough of Keansburg. As she stepped into the street, she placed her left foot on one of four cinder blocks laid lengthwise in the street parallel to the sidewalk. The sidewalk at that location does not feature a curb. The cinder block tipped, and as Buckley twisted and braced herself against a nearby car to keep from falling, she allegedly injured her back, and now suffers from chronic pain on her left side radiating down into her left leg. Buckley subsequently sued the following defendants for damages: Mayra Fleitas, the building owner; the Borough of Keansburg; Borough of Keansburg Public Works; and the Borough of Keansburg Streets and Roads Department.
Buckley's documented medical history of back pain and related problems begins at least in 1990, when she complained of injuring her back while moving a patient at work. Thereafter, in 1997, she fell in a department store - the first of several falls resulting in additional pain to her neck and back areas, and radiating down her torso into her legs. She was seen in an emergency room on November 23, 1998, following a motor vehicle accident - the first of several in which she was involved over the years resulting in exacerbation of her back condition.
Prior to this fall, Buckley underwent multiple back surgeries, as many as nine, including a laminectomy, the placement of a stimulator, and the insertion of a caudal electrode threaded into her spine. Contrary to Buckley's deposition testimony, her medical records reflect that over the years, her complaints of pain included the left side, not just the right side, of her body.
On September 30, 2010, the Law Division judge granted defendants' motions for summary judgment. Buckley appeals the dismissal of her complaint, and we affirm.
Summary judgment is warranted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In making the determination, a court must consider the competent evidence "in the light most favorable to the non-moving party" and determine whether the evidence is "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). Only where the evidence is sufficient to meet that standard should the motion be denied. In reviewing appeals from such decisions, we employ the same analysis. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). After consideration of Buckley's arguments on appeal, we agree with the trial judge that defendants are entitled to judgment as a matter of law even viewing the facts in the light most favorable to Buckley.
Buckley's first contention of error is that summary judgment was granted improvidently because Fleitas, as the lessor, "had a duty to exercise reasonable care and to maintain the rented premises." Regardless of whether the contention has merit, it is clear that the concrete blocks which caused Buckley to twist her body to avoid a fall were located in the street and not in an area over which Fleitas had control. As Buckley readily acknowledged, the incident occurred when she stepped out onto the street, believing that the blocks were "cemented in place."
The definition of commercial property generally includes rental premises. Hambright v. Iglesias, 200 N.J. Super. 392 (App. Div. 1985); but see Luchejko v. City of Hoboken, 207 N.J. 191 (2011) (condominium building in which ten percent of the units are rentals is nonetheless considered residential in determining the duty of care of the condominium association to maintain the sidewalk in front of the building). These premises, occupied by residential tenants, fall within the definition of a commercial property. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) (commercial landowners are responsible to maintain abutting public sidewalks in reasonable conditions and are liable if they do not meet that standard of care); Hambright, supra, 200 N.J. Super. at 395. But Fleitas's duty of care does not include the street, the location of the fall. That area is the responsibility of the municipality.
In an attempt to impose a duty on Fleitas, Buckley relies upon the deposition testimony of Dennis O'Keefe, the Director of Keansburg Public Works, who asserted that it was the property owner's, not the municipality's, responsibility to maintain the "right-of-way," including the street. This assertion is contrary to well-established precedent. A curb is classified "as part of a street for purposes of determining municipal liability for pedestrian injuries relating to the dangerous condition of curbs." Norris v. Borough of Leonia, 160 N.J. 427, 446 (1999). Because a curb is part of the street, the municipality, not the adjoining property owner, is responsible for its maintenance. Ibid. It is undisputed that the cinder blocks were located in the street.
Buckley's claims against the municipal defendants are subject to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Consequently, Buckley must meet the TCA threshold found at N.J.S.A. 59:9-2 in order to pursue her claim for damages for pain and suffering. The statute provides:
[N]o damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment ...