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Lee v. Gilberti

Superior Court of New Jersey, Appellate Division

May 29, 2013

BONG H. LEE and JOO O. LEE, Individually and as Parents and Natural Guardians of JEFFREY LEE, a Minor, Plaintiffs-Appellants,
v.
ANTHONY J. GILBERTI, SR.; PATRICIA GILBERTI; ANTHONY J. GILBERTI, JR.; GINA N. KARAMANOOGIAN; MURRAY KARAMANOOGIAN; COUNTY OF CAMDEN; JAMES R. KELLEY; FIVE COUNTY CARTING, INC.; PAUL A. LOMBARDI, President of Five County Carting, Inc.; HILLVIEWRETAIL CENTER; and CHERRY HILL ASSOCIATES, L.P., Defendants, and TOWNSHIP OF CHERRY HILL; MAYOR BERNARD A. PLATT; COUNCIL PRESIDENT DAVID FLEISHER; COUNCIL VICE PRESIDENT JOYCE ALEXANDER WALKER; COUNCIL MEMBER N. JOHN AMATO; COUNCIL MEMBER DR. BRYEN BARBELL; COUNCIL MEMBER FRANK FALCONE; COUNCIL MEMBER MARLYN KALITAN; COUNCIL MEMBER PAMELA ROSEN LAMPITT; STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; STATE TRANSPORTATION COMMISSIONER JACK LETTIERE; PENNSYLVANIA REAL ESTATE INVESTMENT TRUST; CHERRY HILL CENTER, INC.; CHERRY HILL MALL; THE RUBIN ORGANIZATION, INC.; HILLVIEW SHOPPING CENTER, LLC; LEND LEASE REAL ESTATE; HILLVIEW CH, LLC (d/b/a Hillview Shopping Center); KIMCO REALTY CORP.; LOEWS CINEPLEX ENTERTAINMENT CORP.; LOEWS MOVIE THEATER; CHERRY HILL REDEVELOPMENT PARTNERS, LLC; KOHL'S DEPARTMENT STORES, INC.; and KOHL'S CORPORATION, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2012

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3997-06.

Stephen W. Bruccoleri argued the cause for appellants (Law Offices of Stephen W. Bruccoleri, attorneys; Mr. Bruccoleri, on the briefs).

Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for respondents State of New Jersey, New Jersey Department of Transportation, and Jack Lettiere (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the brief).

Brian H. Leinhauser argued the cause for respondents Township of Cherry Hill, and the Mayor and Council of Cherry Hill Township (Law Offices of Lamb McErlane, PC, attorneys; Mr. Leinhauser, on the brief).

F. Herbert Owens, III, argued the cause for respondents Pennsylvania Real Estate Investment Trust; Cherry Hill Center, Inc.; Cherry Hill Mall and The Rubin Organization, Inc. (Sweeney & Sheehan, P.C., attorneys; Mr. Owens, on the brief).

Thomas M. Madden argued the cause for respondents Lend Lease Real Estate and Hillview Shopping Center, LLC (Hack, Piro, O'Day, Merklinger, Wallace and McKenna, attorneys; Mr. Madden, on the brief).

Suzanne M. Marasco argued the cause for respondents Hillview CH, LLC and Kimco Realty Corp., (Hill Wallack, L.L.P., attorneys; Ms. Marasco, of counsel; Cherylee O. Melcher, on the brief).

Michael F. Dolan argued the cause for respondents Loews West Long Branch Cinemas, Inc., Loews Cineplex Entertainment Corp., and Loews Movie Theater (Hoagland, Longo, Moran, Dunst and Doukas, LLP, attorneys; Richard J. Mirra, of counsel and on the brief).

Robert G. Devine argued the cause for respondent Cherry Hill Redevelopment Partners, LLC (White and Williams, LLP, attorneys; Mr. Devine, of counsel and on the brief; Christopher P. Morgan, on the brief).

Stacy L. Moore, Jr., argued the cause for respondent Kohl's Department Stores, Inc., and Kohl's Corporation (Parker McCay, P.A., attorneys; J. Brooks DiDonato, of counsel; Mr. Moore, on the brief).

Before Judges Fisher, Nugent and Maven.

PER CURIAM

There were no crosswalks or traffic lights at the location of the heavily traveled, barrier-divided, six-lane State highway where plaintiff, Jeffrey Lee, a pedestrian, attempted to cross late on the night of May 7, 2004. Plaintiff was struck by a car and severely injured. Seeking compensation for his injuries, he filed a lawsuit against, among others, the State; Camden County; the Township of Cherry Hill, the municipality where the accident occurred; entities that owned land along both sides of the highway; and businesses that operated along both sides of the highway.[1] He alleged in the lawsuit that the public entities maintained a dangerous condition of property after a pedestrian walkway over the highway, Route 38, was destroyed by a truck in 1999; and that the adjacent landowners and business owners, who did not demolish steps that led from the bottom of the former pedestrian bridge to their property, maintained an "attractive-like" nuisance, which enticed pedestrians to cross the highway at the location of the steps.

The Law Division granted the various summary judgment motions made by defendants and dismissed plaintiff's complaint with prejudice. We agree with the Law Division's determination that the highway was not a "dangerous condition" as that term is defined in the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We also agree that the adjacent property owners and business operators breached no duty of care to pedestrians crossing the highway. Accordingly, we affirm.

I.

Plaintiff's accident occurred in the Township of Cherry Hill on Route 38, a highway with a three-foot high medial barrier that separates its three eastbound lanes from its three westbound lanes. The intersecting streets nearest the accident scene are Haddonfield Road, approximately 1, 000 feet to the west, and Cherry Hill Mall Drive or Hillside Drive, approximately 1, 171 feet to the east.

The Cherry Hill Mall borders the northern side of Route 38. Plaintiff alleged that defendants Pennsylvania Real Estate Investment Trust, Cherry Hill Center, Inc., and Cherry Hill Mall (the Mall defendants) owned the Mall land. A set of steps leading from the northerly side of Route 38 descends into the Cherry Hill Mall parking lot.

Along the southern boundary of Route 38, across the highway from the Cherry Hill Mall, is a lot owned by the Township of Cherry Hill containing a storm water basin and a monument to the former Cherry Hill Inn. Southwest of the storm water basin is a parking lot and a multiplex movie theater operated by defendant Loews West Long Branch Cinemas, Inc. (Loews) on land owned by defendant Cherry Hill Redevelopment Partners, LLC (CHIRP).[2] A sidewalk extends in a northerly direction from the movie theater, along an access road, past the storm water basin, to Route 38. At the point where the sidewalk reaches Route 38, it makes a right angle turn to the east and leads to a set of steps embedded in a grass embankment. The steps provide access to a parking lot in a shopping center (the Hillview Shopping Center).

Defendant Kohl's Department Store, Inc. (Kohl's) operated its department store in the Hillview Shopping Center on the lot where the stairs from Route 38 descended.[3] Kohl's was located on a lot owned by defendants Hillview CH, LLC (Hillview CH) and Kimco Realty Corp. (Kimco).[4]

Plaintiff left Loews, walked along the sidewalk to Route 38 in the vicinity of the embedded stairs, and attempted to cross Route 38 at that point on the night of his accident. There once was a pedestrian bridge at that location.

There is now another pedestrian bridge over Route 38 at the scene of plaintiff's accident. The bridge's history is central to plaintiff's claims. A pedestrian bridge had been built at that location in 1967 for pedestrians walking to and from the Cherry Hill Mall, on the north side of Route 38, and the Cherry Hill Inn and nearby apartment buildings, on the south side of Route 38 where Loews and the Hillview Shopping Center are now located. The State built the bridge because pedestrians were crossing Route 38's traffic lanes and median strip instead of walking to the pedestrian crosswalks at either Haddonfield Road or Cherry Hill Mall Drive.[5]

The bridge, which was approximately fourteen feet above the highway, spanned one hundred twenty-four feet and weighed nearly fifty-five tons. The bridge was supported by a concrete abutment on each side of the highway, and each abutment included a set of stairs leading to the bridge. On the north side of Route 38, near the bridge abutment, embedded stairs traversed an embankment and descended into the parking lot of Cherry Hill Mall. On the south side of Route 38, near the bridge abutment, embedded stairs traversed an embankment and descended to Kohl's parking lot in the Hillview Shopping Center. The two sets of embedded stairs leading to the Cherry Hill Mall on the north side, and to the Hillview Shopping Center on the south side, were not built by the State. In 2004, the year of plaintiff's accident, no sidewalks led from the stairs that descended into Kohl's parking lot to the crosswalks at the intersections at Haddonfield Road and Cherry Hill Mall Drive.

On December 14, 1999, a trash truck crashed into the pedestrian bridge, dislodging it from its moorings on the abutments and destroying it. The State removed it, leaving the abutments in place. Four years later, in 2003, the State removed the abutments and the stairs to the bridge. The stairs leading from the street to the Cherry Hill Mall and the stairs leading from the street to Kohl's parking lot remained in place.

In 2006, the State budgeted the money to build a new pedestrian bridge in the general vicinity of the old pedestrian bridge. Construction of the new bridge was completed in 2008. Thus, the bridge was not in place between 1999 when it was struck by a truck, and 2004 when plaintiff was struck by a car.

During the intervening years, the State and the Township were aware that pedestrians were crossing Route 38 in the vicinity of the old pedestrian bridge. A New Jersey Department of Transportation (DOT) report of a March 16, 2000 "Local Outreach Meeting" at the Township Municipal Building stated: "Contacts with the local officials have indicated that some pedestrians are crossing the New Jersey Route 38 divided highway at the abutments of the downed pedestrian bridge." Although that report described "the objective" of this project as "replac[ing] the bridge and enhanc[ing] the safety of . . . Route 38 corridor by providing means for ...


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