October 11, 2012
MARIA CRESPO, PLAINTIFF-APPELLANT,
CITY OF NEWARK, PUBLIC SERVICE ELECTRIC AND GAS COMPANY, VERIZON, CABLEVISION SYSTEMS CORP., DEFENDANTS, AND KEMSCO CONSTRUCTION, KEMSCO EQUIPMENT COMPANY, INC., D/B/A KEMSCO CONSTRUCTION, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 American Society for Testing and Materials insofar as it failed to restore the crosswalk to a safe walking surface.
Kemsco provided a contrary expert report, authored by professional engineer Michael N. Bohrer, P.E. This report addressed a wealth of information, including the specifications that were incorporated in the Kemsco-Newark contract.*fn2 Bohrer concluded that because
Kemsco did not have any contractual responsibilities for maintenance or inspection of the subject trench after the trench was completed and accepted by the City of Newark and deposition testimony indicates that [its] work complied with the project documents . . . [Kemsco] was not responsible for the trip and fall incident of April 30, 2007.
The motion court reviewed the submissions of the parties, including the conflicting opinions of the experts. It first noted that a span of at least thirteen months, including one winter season, had elapsed between the re-surfacing by Kemsco and Crespo's fall: "the Court will take notice of the fact despite a winter, you can have where there was nothing, no joints or anything or seals of any nature, a pothole appears at any point in time during the course of a winter based upon freeze and thaw." The court found that jurors would be "hard put to find" fault with Kemsco. Moreover, because Newark had paid for Kemsco's work and did not bring Kemsco back to do any "patching and filling of macadam" the court "[could] not find that it would be reasonable that a jury could find a genuine issue of fact or that there would be any fact to support liability with regard to Kemsco." Accordingly, summary judgment was granted dismissing Crespo's claims against Kemsco with prejudice. Several months later, after reaching a settlement with Newark, and all other claims having been resolved, Crespo filed this appeal.
Crespo argues that the motion court erroneously concluded that no reasonable juror, "taking all the reasonable inferences from the evidence" in favor of plaintiff, could "conclude that Kemsco was responsible to any degree for plaintiff's personal injuries." She points to her son's deposition testimony and Skott's opinion as supportive of a favorable jury determination. Furthermore, she criticizes the motion court's seeming (1) acceptance of Gelin's view that there was no "wide deviation" in Kemsco's work when Newark accepted it and (2) rejection of Skott's view that Kemsco's "patchwork was done in a defective and negligent manner."
Kemsco argues that it owed Crespo no duty of care because
(1) it completed its work more than one year before the incident, (2) Newark accepted the work, and (3) no prior complaints about the work were received by the city. From this, Kemsco contends that harm to persons using the crosswalk, including Crespo, was not foreseeable.
Our canvass of the law leads us to conclude that Crespo has the more persuasive argument, particularly in light of the standards that apply to summary judgment. Brill, supra, 142 N.J. at 540. To establish a prima facie case of negligence, Crespo must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages.
D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011). Whether Kemsco owes a legal duty, as well as the scope of the duty owed, are questions of law for the court to decide. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). "The inquiry has been summarized succinctly as one that 'turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). We examine foreseeability, Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1996), as well as 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. Acuna v. Turkish, 192 N.J. 399, 414 (2007) (citations omitted).
In this case, Kemsco was tasked to dig up and restore a crosswalk. By its very nature, this location operates as a safety zone to ensure pedestrians may securely cross the street. Anything that might reasonably erode the integrity of the crosswalk -- e.g., the presence of an uneven surface, a hole, or a significant change in elevation -- heightens the need to ensure compliance with all applicable construction code requirements. Moreover, it is particularly foreseeable that harm might befall users of a compromised crosswalk that fails to provide reliable passage.
We by no means conclude that Kemsco breached a duty. That will be the job of the trier of fact. Instead, we merely declare the existence of a duty of care to comply with the rigors of restoring the crosswalk to a safe means of crossing the street. We recognize that Kemsco's work was completed more than one year prior to Crespo's fall, and the effects of traffic, weather, and other environmental conditions were capable of contributing to the circumstances encountered by her on April 30, 2007, and may have superseded the negligence, if any, of Kemsco's pavement restoration in 2006. We emphasize that the mere happening of an accident does not alone give rise to an inference of negligence. Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40 (1951)). However, that determination was not appropriate for summary judgment disposition because it failed to accord Crespo the benefit of all reasonable inferences found in the motion record.
We further take issue with the position advanced by Kemsco that it was immunized from negligence when Newark accepted its work. Such acceptance may be evidence of satisfaction of the requisite construction and safety codes, but it is not conclusive of a lack of negligence.
On summary judgment, the Skott opinion sufficed to demonstrate a failure to abide allegedly relevant construction standards. Kemsco argues that the identified standards (1) were inapplicable because they were county, not City of Newark, standards or (2) were permissive, not mandatory. The motion court was not asked to suppress the Skott opinion, and neither were we. Although it is possible that there may be merit in Kemsco's challenge to Skott's analysis, that must await a proper application and a decision by the Law Division. We do not preclude such an application on remand, and we offer no insight as to the proper disposition, if timely made.
Reversed and remanded for further proceedings in accordance with this opinion.