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Carylee Johnson v. Eric Morse and Leigh Ann Morse

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 31, 2012

CARYLEE JOHNSON, PLAINTIFF-APPELLANT,
v.
ERIC MORSE AND LEIGH ANN MORSE, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-596-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Yannotti and Kennedy.

Plaintiff Carylee Johnson appeals from an order entered by the Law Division on August 22, 2011, granting summary judgment in favor of defendants, Eric Morse and Leigh Ann Morse. We reverse.

This appeal arises from the following facts. On June 7, 2010, plaintiff was walking along Cannonball Drive in Tinton Falls. She allegedly tripped and fell on a sidewalk panel in front of defendants' residential property. According to plaintiff, the sidewalk panel was approximately one and one-half inches higher that the sidewalk section that abuts it.

In discovery, plaintiff produced a report from William Poznak (Poznak), a professional engineer and land surveyor. In that report, Poznak stated that the sidewalk slab was raised because the base material had not been properly compacted at time of construction. He stated that the base material "sunk" causing the sidewalk slab "to drop." This produced the "noted surface projection." He opined that the "maintenance" of the sidewalk was contrary to general safety practices and rules prevailing in the industry.

On June 23, 2011, defendants filed a motion for summary judgment, which plaintiff opposed. The court considered the motion on August 22, 2011, and placed its decision on the record. The court determined that defendants were entitled to summary judgment.

The court pointed out that the owner of residential property is not liable for the condition of a sidewalk caused by the action of the elements or wear and tear, but could be liable for negligent construction or repair by himself or a specified predecessor in title. The court stated that there was no evidence that defendants installed or made any repairs or changes to the sidewalk. In addition, plaintiff had not identified a prior owner who had allegedly constructed the sidewalk negligently.

The court also rejected plaintiff's contention that defendants could be liable for allegedly violating a municipal ordinance, which requires residential property owners to reconstruct, repair or alter any defective or dangerous sidewalk. The court stated that such ordinances "are merely remedial and do not impose a duty in tort."

The court entered an order dated August 22, 2011, granting defendants' motion for summary judgment. This appeal followed. Plaintiff argues: 1) the court erred by granting summary judgment despite the existence of unresolved material facts concerning the construction of the sidewalk in question; 2) the New Jersey courts should recognize and impose liability upon private landowners for negligent maintenance of sidewalks that abut their property; and 3) the municipal sidewalk ordinance created a duty on the part of defendants to maintain the sidewalk abutting their property, which should be viewed as creating as basis for imposing liability.

When reviewing an order granting summary judgment, we apply the same standard that the trial court applies when it considers a summary judgment motion. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 131-32 (App. Div. 2011). Therefore, we must determine whether the evidential materials before the trial court showed that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). In making this determination, we must view the evidence in a light favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The principles governing liability of a property owner for the injuries arising from a dangerous condition of an abutting sidewalk are well-established. In Yanhko v. Fane, 70 N.J. 528, 534-37 (1976), the Court reaffirmed the long-standing principle "that, absent active misconduct, property owners would not be liable for dangerous sidewalk conditions." Luchejko v. City of Hoboken, 207 N.J. 191, 201-02 (2011) (recognizing the Court's affirmance of the common law rule in Yanhko, supra, 70 N.J. at 534-37). However, in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), the Court held that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Id. at 157.

The Stewart Court did not, however, alter the long-standing principle that residential property owners are not liable for the condition of an abutting sidewalk caused by wear and tear incident to public use, but could be liable if the property owner, or a specified predecessor in title, negligently constructed or repaired the sidewalk. Id. at 153, 159 (citing Yanhko, supra, 70 N.J. at 532).

In Luchejko v. City of Hoboken, the Court reaffirmed the "commercial/residential dichotomy" noting that it "represents a fundamental choice not to impose sidewalk liability on homeowners . . . ." 207 N.J. at 208. The Court stated that the rule had been in place for almost three decades, and the rationale "remains sound[.]" Id. at 209. The Court stated that "[r]esidential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition[.]" Id. at 210.

Furthermore, it also is well established that a municipal ordinance requiring property owners to repair or maintain abutting sidewalks does not create a tort duty running from the property owner to a party injured as a result of a dangerous condition on the sidewalk. Id. at 200-01; Yanhko, supra, 70 N.J. at 536. The rationale for this rule "is that such ordinances are not adopted for the intended purpose of protecting individual members of the public, but rather are to impose upon those regulated 'the public burdens of municipal government.'" Luchejko, supra, 207 N.J. at 200-01 (quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 352 (E. & A. 1902)).

Here, it is undisputed that defendants are residential property owners. Defendants provided a certification to the trial court in which they stated that they purchased the property in 2003. They said that they did not install the sidewalk where plaintiff allegedly fell, and they never engaged in any activity, commercial or otherwise, that caused any defect in the sidewalk in front of their property. Defendants also said that the only repair work that was done during their ownership of the property was performed by the Township in 2004-2005, and this related to the handicap ramp on the corner, which was not the area where plaintiff allegedly fell.

Plaintiff did not refute defendants' assertions. Plaintiff therefore failed to present sufficient evidence to show that the alleged dangerous condition of the sidewalk was due to negligent construction or repair undertaken by defendants. Furthermore, the motion judge correctly stated that defendants' alleged violation of the Township's ordinance could not be the basis for liability for the injuries plaintiff allegedly sustained.

Plaintiff nevertheless alleges that summary judgment should not have been granted since the sidewalk where she fell had been negligently constructed, if not by defendants then by a predecessor in title. According to plaintiff's expert, the base material under the sidewalk slab was not compacted properly, thereby causing the sidewalk panel to drop one and one-half inches lower than the abutting panel. Plaintiff's foot allegedly struck the projecting edge of the sidewalk slab, causing her to fall and sustain serious injuries.

As we stated previously, while a residential property owner may not be liable for negligent maintenance of an abutting sidewalk, the property owner may be liable for negligent construction or repair of the same by the owner or a specified predecessor in title. Stewart, supra, 87 N.J. at 153; Yanhko, supra, 70 N.J. at 532. The plaintiff cannot establish a prima facie case merely by presenting proof that the sidewalk was in a dangerous condition. Murray v. Michalak, 114 N.J. Super. 417, 419 (App. Div. 1970) (citing Lambe v. Reardon, 69 N.J. 57, 64-65 (App. Div.), certif. denied, 36 N.J. 138 (1961)), affirmed o.b., 58 N.J. 220 (1971).

Rather, the plaintiff must identify the predecessor in title who negligently constructed or repaired the sidewalk. Yanhko, supra, 70 N.J. at 535. The plaintiff also must show "'when the sidewalk was constructed and the proper standard of construction at the time.'" Ibid. (quoting Moskowitz v. Herman, 16 N.J. 223, 225 (1954)).

In this case, plaintiff has asserted that the sidewalk was negligently constructed but she has not identified defendants' predecessor in title who did so, nor has she established when the construction occurred. Moreover, while Poznak stated that the construction did not conform to certain standards, plaintiff has not established that the standards Poznak relied upon were in effect at the time the work was done.

This failure of proof would be sufficient to warrant the grant of summary judgment in defendants' favor but for the fact that the time for discovery had not yet run when defendants moved and the court granted their motion for summary judgment. Where, as here, discovery on material issues is not complete, the trial court should not consider a motion for summary judgment until the party opposing the motion has had an opportunity to take discovery on those issues. Wilson v. Amerada Hess Corp., 168 N.J. 236, 253-54 (2001). See also Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, (1988) (noting that summary judgment motion not ripe for consideration where discovery was not complete).

We therefore conclude that the court erred by granting defendants' motion. We remand the matter to the trial court so that discovery can be completed on the issues of whether one of defendants' predecessors in title negligently constructed the sidewalk panel in question, when the construction took place and what standards were in effect at the time the work was done. Defendants may renew their motion for summary judgment after the completion of discovery on these issues.

Plaintiff additionally argues that the time has come for the New Jersey courts to recognize and impose liability upon residential landowners for the negligent maintenance of sidewalks. We are bound, however, by the decisions of the Supreme Court. State v. Rose, 206 N.J. 141, 183 (2011). Moreover, as we have noted, the Court recently reaffirmed the "basic principle that residential property owners are not liable for sidewalk injuries[,]" in the absence of some "active misconduct" on their part. Luchejko, supra, 207 N.J. at 202-04, 208-210.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

20120531

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