On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-562-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.*fn1
In this personal injury lawsuit, plaintiff Stephanie Ciarrocca appeals from an order denying reconsideration of summary judgment granted to defendant Higgins Funeral Home. The issue presented is whether a business owner has a duty to provide safe passage for patrons from an off-site parking area. We reverse the trial court's orders because a factual issue is presented by the evidence as to whether the business owner in this case directed plaintiff and other guests to the off-site parking area. We conclude that the business owner had a duty to inspect for discoverable dangerous conditions of property to which it directed its patrons.
The evidence presented in defendant's summary judgment motion would support the following facts as viewed most favorably to plaintiff. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On February 8, 2004, plaintiff attended a viewing at defendant's funeral home on Mountain Boulevard in Watchung. Defendant's on-site parking area accommodated approximately seventy cars. The principal of defendant funeral home testified in deposition that defendant had agreements with two adjacent business establishments on Mountain Boulevard for use of their lots if its own parking lot was filled to capacity. As it had done on previous occasions, defendant hired an off-duty police officer to direct traffic. Defendant claimed it had instructed the officer to direct cars to one of the two lots it was authorized to use. According to the off-duty officer's deposition testimony, however, defendant instructed him to direct overflow cars to two lots on Shawnee Drive, across Mountain Boulevard from the funeral home.
In her deposition, plaintiff testified that she arrived for the viewing at approximately 8:30 p.m. She was directed by the officer to the Shawnee Drive lots, and she followed other cars into a lot owned by defendant Ferrugia Associates. She used a sidewalk adjacent to the lot to walk to the funeral home about 150 feet away. After staying about one hour, she returned to her car by the same route. Before she reached her car, she slipped and fell, seriously injuring her leg. Lying on the ground, plaintiff saw ice on the sidewalk as the cause of her fall.
Defendant funeral home did not have permission from the owners to use the lots on Shawnee Drive. Defendant had not inspected the area of the Ferrugia lot and had no knowledge of ice on the sidewalk. Although defendant had a contractor to clear snow and ice from its own parking lot and walkways, defendant had no authority to clear or salt the Ferrugia lot or its adjacent sidewalk. Defendant Ferrugia Associates considered use of its lot to accommodate defendant's patrons and guests as trespassing.*fn2
In its initial written decision on defendant's motion for summary judgment, the trial court stated that plaintiff had voluntarily chosen to park off-site and defendant did not have a duty to plaintiff to ensure the safety of the off-site area. On plaintiff's motion for reconsideration, the court modified its decision with a corrected factual allegation favorable to plaintiff - that the off-duty officer, as defendant's agent, had directed plaintiff to park at the Ferrugia site. In a second written decision, the court carefully analyzed several precedents on the issue of a business owner's duty to provide for the safety of patrons from off-site hazards, and it concluded that a business owner had a duty to warn of obvious dangerous conditions but not to inspect and discover latent defects of a site it did not own or control. Therefore, the court adhered to its original decision granting summary judgment to defendant.
A common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009). The plaintiff bears the burden of proving each of these elements. Ibid.
In the negligence context, "a duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J. 399, 413 (2007) (internal quotation marks omitted), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008). Whether a duty of care exists with respect to a particular plaintiff "is generally a matter for a court to decide." Ibid.
In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993), the Court discussed the common law development of a landowner's duty to prevent injury from a dangerous condition or to warn those on the land of hazards. Recent development of the law has approached the question of duty flexibly and with fact-sensitive consideration of public policy and fairness. Id. at 435-41. A court must examine such factors as "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439; accord Acuna, supra, 192 N.J. at 414; Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996).
In this case, defendant is a commercial business owner and plaintiff was a guest of a patron of the business. Although defendant did not expect a direct economic benefit from plaintiff, defendant was compensated by the patron who in effect invited plaintiff to the viewing. The nature of the attendant risk was a ...