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Frank Ozello, Jr., By His Father and Guardian Ad Litem, Frank Ozello v. Jason Cyrus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2013

FRANK OZELLO, JR., BY HIS FATHER AND GUARDIAN AD LITEM, FRANK OZELLO, SR., AND FRANK OZELLO SR., INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JASON CYRUS, THE TOWNSHIP OF NEW BRUNSWICK, WILLIAM H. PETRY, JR., JOSEPH CARLINO, MATTHEW LANDIS AND MICHAEL ST. PIERRE, DEFENDANTS-RESPONDENTS, AND HOMESITE INSURANCE COMPANY, DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8717-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued May 16, 2012

Before Judges Messano, Yannotti and Espinosa.

Plaintiff*fn1 appeals from orders that granted summary judgment to defendants City of New Brunswick (the City) and Joseph Carlino, Matthew Landis, and Michael St. Pierre (collectively, tenants or tenant defendants), and dismissed plaintiff's complaint with prejudice.

Plaintiff was a guest of Landis and Carlino on September 13, 2008, when he fell from the second-story landing of a wooden staircase leading to the backyard. He was seriously injured, fracturing several bones and falling into a coma.

Plaintiff filed a negligence action against Jason Cyrus, the owner of the apartment, in October 2008, and later obtained a default judgment against Cyrus for $2,350,000. Plaintiff was granted summary judgment as to Homesite Security, Inc., Cyrus's homeowner's insurance carrier, in a consolidated matter.

Plaintiff also amended the complaint to include claims of negligent hiring, supervision and retention against the City,*fn2 and a claim of negligence against the tenants. The City and the tenants filed motions for summary judgment, which were granted by the court.

In this appeal, plaintiff argues that the trial court erred in granting summary judgment to the City because immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, did not apply to his claims, and the City is liable for its negligent hiring, retention, supervision and training of the housing inspectors here. He also contends that the court erred in granting summary judgment to the tenant defendants because they had a duty to prevent him from "encountering the dangerous condition of the porch and railing of their rented premises." For the reasons that follow, we affirm.

I

In our review of an order granting summary judgment, we apply the same standard of review as the trial court. Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009). Summary judgment is appropriate if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

II

Plaintiff alleged that the City was negligent in failing to properly train and supervise housing inspectors Thomas Boylan and Sherriann Miller and that, as a result, the dangerous condition that caused his injury was permitted to exist. The evidence regarding the municipal inspections of the property, viewed in the light most favorable to plaintiff, can be summarized as follows:

The City's expert stated that the housing inspector's job is to "ensure habitability and maintenance of a house or rental unit" and therefore, the inspector should "have a general knowledge to inspect for quality of habitability." However, the only training afforded to Inspectors Boylan and Miller was to accompany other inspectors. The City did not require any qualifications for its housing inspectors and did not maintain a system to keep track of violations that must be corrected and re-inspected.

Employees of the City Bureau of Housing Inspections inspected the property three times between January 5 and September 27, 2006. Boylan conducted the inspection on September 27, 2006 and a reinspection on April 20, 2007, for which there is no report. Boylan had no qualifications for this job when he was hired and was not familiar with the American Society of Civil Engineers (ASCE) Code 7-95 regarding minimum design loads for balconies and handrailings.

Miller agreed that a housing inspector must know the applicable codes. However, she was unfamiliar with the code sections applicable to back porches and stairwells when she inspected the premises on January 5 and February 1, 2006. Miller did not know what to check for regarding the load strengths of back decks under the ASCE standards or that she was supposed to check for minimum design loads for balconies and handrails.

Plaintiff's expert stated that the photographs of the property taken on October 30, 2008 showed "extensive deterioration and an extremely hazardous condition" and that "the structural components for the stairway, the handrails and guardrails . . . were deteriorated to the extent where they no longer had structural capacity." He stated further that the conditions were "indicative of neglect to this structure for more than ten (10) years" and therefore would have been present at the time of the inspections by Boylan and Miller.

Viewing the evidence most favorably to plaintiff, it would support a claim that the housing inspections were negligent. As plaintiff acknowledges, however, both the City and the inspectors are immune from liability for negligent inspections under the TCA.

N.J.S.A. 59:2-6 provides:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it . . . .

This immunity is provided to public employees in N.J.S.A. 59:3-7.

Plaintiff argues that summary judgment was not appropriate, however, because such immunity does not apply to his claim that the City was negligent in its hiring, retention, training and supervision.

In Di Cosala v. Kay, 91 N.J. 159 (1982), the Supreme Court recognized a cause of action for negligent hiring and distinguished it from liability based upon respondeat superior, where the wrongful employee's conduct must be within the scope of his or her employment. Id. at 172-73. The Court noted, "A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them." Id. at 172 (quoting Restatement (Second) of Torts § 317 (1963)) (emphasis added). In Mavrikidis v. Petullo, 153 N.J. 117, (1998) the Court discussed Comment a to the Restatement section further, stating it expressly provides that the rule is applicable only when the servant is acting outside the scope of his employment. If the employee were acting within the scope of his employment, then the master may be vicariously liable under standard agency principles. [Id. at 133-34 (internal citations and quotations omitted).]

See also Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007) (noting "negligent hiring covers acts committed outside the scope of employment").

The allegations against the City here are limited to the actions and failures of Miller and Boylan in the discharge of their duty to conduct inspections, acts that were clearly within the scope of their employment. There is, therefore, no factual basis for the imposition of liability based upon a claim of negligent hiring, retention or supervision and summary judgment was appropriate.

III

Plaintiff alleged that the tenant defendants "knew, or should have known, of the dangerous condition of the porch and/or balcony railing[,]" and that he was "caused to slip and fall off a second story porch with great force and violence" as a direct and proximate result of their negligence. To successfully oppose the motion for summary judgment here, plaintiff had to show there was a genuine issue for trial. See Brill, supra, 142 N.J. at 540; R. 4:46-2(c).

There was no dispute as to the facts regarding the tenant defendants. Because plaintiff had no recollection of the event, the facts are derived from the unrefuted version of events provided by Carlino and John O'Keefe.

Carlino testified that on the night of the accident he went outside onto the porch to smoke with plaintiff, O'Keefe, and Tom Appel. As soon as they walked outside, he said, "the porch [is] in bad condition, be careful, the [banister] is loose." Carlino testified that each of the others acknowledged his warning. According to Carlino, plaintiff "grabbed the rail and saw that it was shaky . . . [and] said, you know, [t]his is not good[.]" No more than ten minutes later, as they were getting ready to go back in, Carlino heard the bannister snap and saw plaintiff fall over it.

John O'Keefe gave a statement to a private investigator retained by plaintiff's counsel, which was submitted to the court in conjunction with the summary judgment motion practice. O'Keefe's description of the accident is reported as follows:

O'Keefe advised that he and Appel were sitting in chairs on the rear deck of the second floor apartment. Ozello was standing on the deck and Carlino was standing near the stairway of the deck. O'Keefe states that Carlino warns Ozello not to lean against the railing because it is not secure. At that point, Ozello touches the railing and states, "No, I'm not leaning against that." Within minutes after that, O'Keefe and Appel got off their chairs to go back in. When they turned their back to Ozello they heard him yell, they turned around and saw him lying on the concrete slab beneath.

Plaintiff argues that, despite the warning given, the tenant defendants were negligent. He argues that the condition of the deck was so dangerous that "no amount of warning could have avoided the foreseeable harm to their guests[,]" and that "the only way to use reasonable care to ensure the safety of their guests, would have been to keep them off the back deck completely . . . ."

Historically, the duty of an owner or possessor of private property toward a person who has been injured because of a dangerous condition on their property was determined by whether the injured person was a business invitee, licensee, or trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). In Hopkins, the Court cautioned against a rigid adherence to such classifications to define the scope of the duty where the relationship between the owner or possessor of the property and the injured person does not fit easily into such categories. Id. at 437-38. Thus, in considering the scope of a duty to impose upon a real estate broker to prospective purchasers at an open-house, the Court instructed,

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but, . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. [Id. at 438.]

Similarly, in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006), the Court determined that, because it was foreseeable that one could be injured by exposure to asbestos dust, it was fair to impose a duty upon a defendant landowner toward the wife of a laborer who laundered his asbestos-contaminated clothing on a daily basis, even though the exposure had not occurred on defendant's property.

However, when the status of the injured person does fall into one of the traditional classifications, the duty recognized at common law still applies, furthering the goal of a reasonable degree of predictability. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44-45 (2012). Therefore, the common law duty to a social guest, such as plaintiff, applies, i.e., "the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware." Hopkins, supra, 132 N.J. at 434. As the undisputed evidence supports the conclusion that Carlino discharged this duty, there was no genuine issue of fact as to the tenant defendants' negligence and summary judgment was appropriate.

Affirmed.


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