LORA SHERMAN and TIMOTHY SHERMAN, husband and wife, Plaintiffs-Appellants,
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Defendant/Third-Party Plaintiff-Respondent,
NADASKAY KOPELSON ARCHITECTS, Third-Party Defendant/ Fourth-Party Plaintiff,
YU AND ASSOCIATES, INC., Fourth-Party-Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 7, 2012
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10249-09.
Brett R. Greiner argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Matthew P. Pietrowski, on the brief).
George J. Kenny argued the cause for defendant/third-party plaintiff-respondent (Connell, Foley, L.L.P., attorneys; Mr. Kenny, of counsel and on the brief).
Before Judges Axelrad and Nugent.
Plaintiffs, Lora Sherman and Timothy Sherman, appeal from the order that granted summary judgment to defendant, Rutgers University, and dismissed their personal injury and per quod actions with prejudice. Plaintiffs contend the evidence they produced in opposition to the summary judgment motion filed by defendant established a triable issue as to whether a dangerous condition on defendant's property caused the trip and fall accident out of which their claims arose, and that the trial judge erred by ruling to the contrary. We affirm.
The facts viewed in the light most favorable to plaintiffs are as follows. On December 4, 2008, plaintiff, her husband, their friend Steve, and Steve's thirteen-year-old son, attended a Rutgers-Louisville football game at the Rutgers Stadium on the New Brunswick campus in Piscataway. Plaintiff and her husband had been season ticket-holders for two or three years. On the night of plaintiff's accident, she, her husband, and their guests decided to leave the game at halftime, approximately 8:30. They began to walk along the same route they had taken when they had come to the stadium earlier that evening after parking their car. Plaintiff's husband and Steve were walking approximately five feet in front of her.
After the group exited the stadium through a gate at the northeast corner, they walked south, along the east side of the stadium parallel to the Hale Center. The Hale Center is an athletic building attached to the stadium. As the group walked along the sidewalk, plaintiff saw lights on at the top of the windows in the Hale Center and decided to take a closer look, because "[i]t looked like there might have been football players in there." Although she had been walking on the sidewalk, she "peeled off" from the others, turned right, and started to walk directly toward the windows in the Hale Center. It was dark. As she stepped toward the building, plaintiff was looking toward the window, rather than down at the sidewalk. Had she not made the right-hand turn to walk toward the building, the accident would not have occurred. As she walked toward the building, plaintiff tripped over a retaining wall and fell, dislocating both of her arms and sustaining severe fractures requiring surgery.
The retaining wall, which bordered the edge of the sidewalk closest to the Hale Center, was constructed of precast concrete pavers or blocks in a trapezoidal shape. Between the retaining wall and the exterior wall of the Hale Center was a drop-down into an open well. The retaining wall extended forty-three feet along the edge of the sidewalk nearest the Hale Center, and the top of the wall ranged in height from four to nine inches above the sidewalk on one side, and from twenty-four to thirty inches above the bottom of the well on the other. The distance from the inside face of the retaining wall to the exterior wall of the Hale Center ranged up to sixty-two inches. The exterior wall of the Hale Center is made of glass, opaque at the bottom, extending upward from five to eight feet, to keep people from looking into the building. The upper part of the glass-paneled wall allows light to pass through.
Robert Hoffman, a licensed professional engineer and senior project manager employed by defendant, testified during his deposition that the retaining wall and well were constructed as part of additions to the Hale Center built in 2002. The purpose of the retaining wall was to separate "the grades" between the walkway and the well. The grade at the bottom of the well was required "for the building flashing for the waterproofing of the exterior of the building." The architect who designed the additions to the Hale Center designed the retaining wall and well. No employees of defendant were involved in the design of the grade separation and well.
Hoffman testified that the walkway where plaintiff fell was not a primary route to and from the stadium. He did not think the retaining wall was a tripping hazard because it was "far enough off the normal walkway that it shouldn't constitute a tripping hazard[.]" He acknowledged, however, that he was not a trained safety manager or trained safety engineer. As far as Hoffman knew, the retaining wall had been designed by the architect in accordance with the Building Officials and Code Administrators (BOCA) building code. To Hoffman's knowledge, the only lights that would illuminate the ...