On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2449-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2012
Before Judges Harris and Hoffman.
Plaintiff Maria Crespo appeals from the January 7, 2010, summary judgment dismissal of her complaint against defendant Kemsco Construction and Equipment Company, Inc. (Kemsco). The Law Division dismissed Crespo's claims because it found an absence of "any fact to support liability with regard to Kemsco." We reverse and remand for further proceedings.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court.
See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We must "consider 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).
Viewed most favorably to Crespo, the summary judgment record established the following facts. Sometime in 2006, Kemsco entered into a construction contract with the City of Newark to provide excavation services as part of a road-widening project at the intersection of Mount Prospect Avenue and Elwood Avenue.*fn1 Kemsco performed work at this location by digging a trench in the center of a crosswalk used by pedestrians crossing Elwood Avenue on the east side of Mount Prospect Avenue. After conduits were installed, Kemsco filled the trench and applied a temporary macadam surface. This work was completed no later than March 2006.
Newark inspected the temporary road surface "no later than September of 2006," and "did not find it to be a wide deviation." No complaints about the work were lodged with the city until after Crespo fell in April 2007. In October 2008, a different contractor re-paved the area with a permanent surface as part of the overall road-widening project.
On April 30, 2007, Crespo was walking in the intersection when she stepped into a hole in the crosswalk causing her to fall and suffer personal injuries. Photographs of the condition of the roadway were taken by Javier Crespo, plaintiff's son, who was walking slightly behind his mother while talking on his mobile phone. When indulgently viewed, those photographs depict an uneven surface and two pronounced seams -- narrow gaps -- running down the middle of the painted crosswalk. For example:
Javier testified at his deposition that when he approached the location where his mother fell, he "saw the area, it was broken out, it looked like there was a hole there."
Crespo filed a complaint in the Law Division in early 2010. After discovery, Kemsco moved for summary judgment. Crespo responded to the motion with, among other things, an expert report authored by an architect, Lawrence H. Skott, A.I.A., which opined that Kemsco's negligence contributed to Crespo's fall.
Skott reviewed the photographs and Crespo's deposition testimony, and interviewed Javier. The expert concluded that Kemsco's work violated the "Essex County Roads Right-of-Way Utility Trench Restoration Detail" because "the edges of the restoration [were] not planar or flush and creat[ed] an extremely hazardous condition for pedestrians using the crosswalk." Also, Skott opined that Kemsco's work violated safety standards promulgated by the ...