Opinion
DOCKET NO. A-0599-11T2
05-30-2012
STEPHANIE CIARROCCA, Plaintiff-Appellant, v. FERRUGIA ASSOCIATES, and EJ CARRAR & SON, Defendants. and HIGGINS FUNERAL HOME, Defendant-Respondent,
Kevin M. Shanahan argued the cause for appellant. Kevin J. Conyngham argued the cause for respondent (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Conyngham, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
Judge Sabatino recused himself immediately after participating in oral argument. With the consent of the parties, this opinion is issued by a two-judge panel.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-562-10.
Kevin M. Shanahan argued the cause for appellant.
Kevin J. Conyngham argued the cause for respondent (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Conyngham, on the brief). PER CURIAM
In this personal injury lawsuit, plaintiff Stephanie Ciarrocca appeals from an order denying reconsideration of summary judgment granted to defendant Higgins Funeral Home. The issue presented is whether a business owner has a duty to provide safe passage for patrons from an off-site parking area. We reverse the trial court's orders because a factual issue is presented by the evidence as to whether the business owner in this case directed plaintiff and other guests to the off-site parking area. We conclude that the business owner had a duty to inspect for discoverable dangerous conditions of property to which it directed its patrons.
The evidence presented in defendant's summary judgment motion would support the following facts as viewed most favorably to plaintiff. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On February 8, 2004, plaintiff attended a viewing at defendant's funeral home on Mountain Boulevard in Watchung. Defendant's on-site parking area accommodated approximately seventy cars. The principal of defendant funeral home testified in deposition that defendant had agreements with two adjacent business establishments on Mountain Boulevard for use of their lots if its own parking lot was filled to capacity. As it had done on previous occasions, defendant hired an off-duty police officer to direct traffic. Defendant claimed it had instructed the officer to direct cars to one of the two lots it was authorized to use. According to the off-duty officer's deposition testimony, however, defendant instructed him to direct overflow cars to two lots on Shawnee Drive, across Mountain Boulevard from the funeral home.
In her deposition, plaintiff testified that she arrived for the viewing at approximately 8:30 p.m. She was directed by the officer to the Shawnee Drive lots, and she followed other cars into a lot owned by defendant Ferrugia Associates. She used a sidewalk adjacent to the lot to walk to the funeral home about 150 feet away. After staying about one hour, she returned to her car by the same route. Before she reached her car, she slipped and fell, seriously injuring her leg. Lying on the ground, plaintiff saw ice on the sidewalk as the cause of her fall.
Defendant funeral home did not have permission from the owners to use the lots on Shawnee Drive. Defendant had not inspected the area of the Ferrugia lot and had no knowledge of ice on the sidewalk. Although defendant had a contractor to clear snow and ice from its own parking lot and walkways, defendant had no authority to clear or salt the Ferrugia lot or its adjacent sidewalk. Defendant Ferrugia Associates considered use of its lot to accommodate defendant's patrons and guests as trespassing.
Plaintiff's complaint against Ferrugia Associates was dismissed, and plaintiff has not challenged that ruling.
In its initial written decision on defendant's motion for summary judgment, the trial court stated that plaintiff had voluntarily chosen to park off-site and defendant did not have a duty to plaintiff to ensure the safety of the off-site area. On plaintiff's motion for reconsideration, the court modified its decision with a corrected factual allegation favorable to plaintiff — that the off-duty officer, as defendant's agent, had directed plaintiff to park at the Ferrugia site. In a second written decision, the court carefully analyzed several precedents on the issue of a business owner's duty to provide for the safety of patrons from off-site hazards, and it concluded that a business owner had a duty to warn of obvious dangerous conditions but not to inspect and discover latent defects of a site it did not own or control. Therefore, the court adhered to its original decision granting summary judgment to defendant.
A common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009). The plaintiff bears the burden of proving each of these elements. Ibid.
In the negligence context, "a duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J. 399, 413 (2007) (internal quotation marks omitted), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008). Whether a duty of care exists with respect to a particular plaintiff "is generally a matter for a court to decide." Ibid.
In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993), the Court discussed the common law development of a landowner's duty to prevent injury from a dangerous condition or to warn those on the land of hazards. Recent development of the law has approached the question of duty flexibly and with fact-sensitive consideration of public policy and fairness. Id. at 435-41. A court must examine 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." Id. at 439; accord Acuna, supra, 192 N.J. at 414; Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996).
In this case, defendant is a commercial business owner and plaintiff was a guest of a patron of the business. Although defendant did not expect a direct economic benefit from plaintiff, defendant was compensated by the patron who in effect invited plaintiff to the viewing. The nature of the attendant risk was a dangerous condition of the sidewalk, black ice, adjacent to an off-site parking lot.
Our analysis of the duty of a business owner with respect to hazardous conditions of access to its property begins with Stewart v. 104 Wallace St., Inc., 87 N.J. 148, 157 (1981), in which the Court held that a commercial business owner had a duty to repair an abutting sidewalk to avoid injury to patrons that used the sidewalk for access to the business. In Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983), the Court held that the business owner's duty included the clearing of snow and ice from an abutting sidewalk.
In a related context, the Court held in Butler v. Acme Markets, Inc., 89 N.J. 270, 276, 284 (1982), that a business owner had a duty to provide for the safety of business invitees from criminal acts of third parties in its parking lot when the danger of the criminal activity was known. In Monaco v. Hartz Mountain Corp., 178 N.J. 401, 409-10, 419 (2004), the Court held that a business owner had a duty to warn invitees entering or leaving its premises of a discoverable hazard from a loose parking sign that was owned and maintained by the municipality, even though the business owner did not control the sign and was not authorized to repair it.
Two of our own precedents addressed the duty of a business owner to provide safe passage for patrons walking between an off-site parking area and the business premises. In both cases, the patron had parked in a lot across a busy road from the business establishment and was struck and killed by a car while crossing the road at night. In Warrington v. Bird, 204 N.J. Super. 611, 617 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986), we held that the defendant restaurant had a duty to provide for safe passage from a parking lot it owned across the road. In Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 317-19 (App. Div.), certif. denied, 147 N.J. 263 (1996), the defendant catering establishment did not own the property on which the plaintiff had parked, but it was aware that overflow parking would at times use that site and that access to the business required crossing a busy roadway in the dark. We held that the business owner had a duty to provide safe passage, by means of warnings to its patrons or traffic control in the area. Id. at 321-22, 324.
In Brierley v. Rode, 396 N.J. Super. 52, 54 (App. Div. 2007), certif. denied, 194 N.J. 269 (2008), we held that there was no corresponding duty of a landowner who permitted use of its property for parking by patrons of another business to ensure safe passage across a road to the other business.
--------
However, in MacGrath v. Levin Properties, 256 N.J. Super. 247, 254 (App. Div.), certif. denied, 130 N.J. 19 (1992), we held that the owner of a shopping center did not have a duty to ensure safe passage of patrons across a highway at a traffic light. Recently in Pote v. City of Atlantic City, 411 N.J. Super. 354, 359-60, 369 (App. Div.), certif. denied, 202 N.J. 43 (2010), we held that a defendant business owner had no duty to patrons to clear ice and snow from the area of the Atlantic City Boardwalk adjacent to its business but which it did not own or control. See also Puterman v. City of Long Branch, 372 N.J. Super. 567, 569 (Law Div. 2004) (business owner did not have a duty to patron to remedy or warn of icy condition of municipal parking lot although it had informed invitees that parking was available at that location).
From these precedents, the trial court concluded that defendant funeral home did not have a duty to plaintiff to ensure safe passage from the Ferrugia lot. The court explained that defendant had no authority or control over that site, and it distinguished our holdings in Warrington and Mulraney because it perceived the hazard in those cases to be obvious, crossing a busy road in the dark, while the black ice in this case was a latent dangerous condition that was unknown to defendant.
We would agree with the trial court's conclusion if plaintiff had herself selected where she parked off-site. We think a crucial fact in establishing defendant's duty in these circumstances is whether defendant directed guests to the off-site parking area. If it did, we hold it had a duty to inspect the site for hazards that could be discovered by means of a reasonable inspection. Although defendant had no authority to remedy a dangerous condition on the Ferrugia property, it had a duty either to warn guests of the dangerous condition of a parking lot it chose to use or to avoid use of the off-site parking lot if a warning was inadequate.
Our holding is consistent with the Supreme Court's analysis in Hopkins, supra, 132 N.J. at 444-46, of a duty to inspect property that the defendant did not own or control. In that case, the Court held that a realtor conducting an open house for its client home-owner had a duty to inspect the house for "discoverable physical features or conditions of the property that pose a hazard or danger to such visitors." Id. at 445. The Court acknowledged that the realtor's duty to provide for the safety of visitors is not as broad as that of the homeowner. Ibid. Nevertheless, it reasoned that a duty should be imposed to inspect for "any dangerous conditions that the broker might reasonably discover." Ibid. The realtor's duty extended only to those hazards that would be revealed by means of "a reasonable . . . inspection." Ibid.
Similarly, we think that the duty of the funeral home in this case is not limited to known or obvious hazards. Defendant could without undue burden conduct a reasonable inspection of a site to which its agent was directing overflow parking. Although it had no authority to clear ice and snow from the Ferrugia lot and sidewalk, defendant could have determined whether it was safe to park guests at that location. If the inspection determined that the site was unsafe, defendant could have provided adequate warning to its guests or avoided use of that site.
We reach no conclusion as to whether the black ice was present or could have been discovered by defendant before directing guests to the Ferrugia lot. We also do not determine whether defendant did in fact instruct the off-duty officer to direct cars to the Ferrugia lot. Those issues are factual matters regarding defendant's alleged negligence that a jury might be asked to resolve at the trial. We only hold that a business owner's use of an off-site parking site entails a corresponding duty to conduct an inspection for reasonably discoverable dangerous conditions and a further duty to warn or to avoid the danger.
Reversed and remanded for trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION