Opinion
DOCKET NO. A-0404-11T3
01-31-2013
DEBORAH KALISHER and AARON KALISHER, Plaintiffs-Appellants, v. MANSFIELD PLAZA ASSOCIATES, HUDSON ASSOCIATES, VERIZON JERSEY CENTRAL POWER & LIGHT and/or JCP&L, TOWNSHIP OF MANSFIELD,STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, WARREN COUNTY, Defendants, and MANSFIELD PLAZA ASSOCIATES, HUDSON ASSOCIATES, Defendants/Third-Party Plaintiffs, v. STEVE'S LAWN & LANDSCAPING, INC., Third-Party Defendant-Respondent.
Macce & Cresti, P.C., attorneys for appellants (Michelle M. Cresti, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0299-08.
Macce & Cresti, P.C., attorneys for appellants (Michelle M. Cresti, on the brief).
Respondent has not filed a brief. PER CURIAM
Plaintiffs, Deborah Kalisher and her husband, Aaron Kalisher, appeal from Law Division orders dismissing their personal injury claims against defendant Steve's Lawn and Landscaping, Inc. [Steve's]. The Law Division dismissed the Kalishers' claims because it found an absence of "evidence that [Steve's] caused the condition or that the hole was the result of any action or inaction on the part of [Steve's]." Based upon our review of the record and the applicable law, we reverse and remand.
On November 16, 2010, the trial court granted Steve's motion for summary judgment. Plaintiffs thereafter filed a motion for reconsideration, which the court denied by order entered on June 17, 2011. Plaintiffs appeal from both orders.
Steve's was originally a third-party defendant. Plaintiff later was granted leave to file a direct claim against Steve's.
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I.
Viewed most favorably to plaintiffs, the summary judgment record established the following facts. On July 16, 2006 plaintiff Deborah Kalisher sustained a calcaneal fracture (broken heel) when she fell in a hole while traversing a short-cut across a heavily worn path on commercial property owned by defendant Mansfield Plaza (Mansfield). The hole was approximately twenty-one inches long, twelve inches wide, and eleven inches deep. Long grass concealed the hole on the day of plaintiff's injury.
According to plaintiff's liability expert, Ronald Saxon, P.E.:
The only apparently safe pedestrian access to or from the Mansfield Plaza,[] was via the grassy verge where Ms. Kalisher had fallen. Recurrent pedestrian traffic had worn a path in the turf . . . . That path was the natural path of travel . . . . The void identified by Ms. Kalisher was situated in that worn path[.]
According to Mansfield's liability expert, Rodney Blouch, P.E., the subject hole was the result of irrigation installation followed by "inadequate backfill and compaction."
Steve's has served as the landscaper for Mansfield since 2002, performing the following services: lawn maintenance, fertilization, spring cleanup, fall cleanup, pruning, irrigation and snowplowing. Eugene Ingraham III has been the general manager of Steve's since 1999. In 2006, he handled the majority of the irrigation work. When asked at his deposition, "[d]id you do irrigation work at Mansfield Plaza in July [2006,]" he replied, "[y]es, we did."
Ingraham further indicated that, in the past, he had detected hazards on two occasions at the subject property. Each time, he reported the hazards to Mansfield. Specifically, the first time he reported a sink hole that had developed as a result of a water main break, and the second time, he reported a "huge" pothole in the parking lot. When specifically asked about the hole where plaintiff fell, he said that "yes, that type of hole should be reported by my employees." Further, he indicated that if the hole had been reported to him, "I would immediately call [Mansfield] and tell them[.]" Ingraham also said, "I know [the hole] has been there a long time [because] there's no pile of dirt next to it."
Mansfield and Steve's both filed summary judgment motions. The judge granted Steve's motion and denied Mansfield's motion. Mansfield eventually settled with plaintiffs and this appeal followed.
II.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). 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).
"To establish a prima facie case of negligence, a plaintiff 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 Steve's 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 (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) (internal quotation marks and citations omitted).
In Raimo v. Fischer, 372 N.J. Super. 448, 451 (App. Div. 2004), we held that "a contractor's tort liability is governed by general negligence principles, which require a contractor to exercise reasonable care to maintain a construction site in a safe condition for any persons the contractor may reasonably expect to come onto the site."
III.
Plaintiffs argue that the motion court erred when it concluded that no reasonable juror, "taking all the reasonable inferences from the evidence" in favor of plaintiff, could "conclude that . . . Steve's was responsible to any degree for plaintiff's personal injuries." They point to Ingraham's deposition testimony and Blouch's expert opinion as supportive of a favorable jury determination.
Specifically, plaintiffs argue that they presented proofs from which a reasonable jury could conclude that Steve's was responsible for plaintiff's injury, as the hole in which plaintiff fell was either (a) actually created by Steve's or (b) that Steve's employees who regularly cared for the very area where this hole existed, knew or should have known of the danger of this hole and should have reported it to the property owner.
The report of Mansfield's liability expert clearly implicated irrigation work as a likely cause of the hole, attributing it to "inadequate backfill and compaction." This report was before the judge when she decided the motion as plaintiff's counsel attached it to a November 2, 2010 letter to the court; however, it does not appear the report was ever specifically referenced during oral argument. The following exchange occurred between the judge and counsel for Mansfield:
[COUNSEL FOR MANSFIELD]: Your Honor, if I may just very briefly on that point just so the record is fully clear. There is a theory in the case, going back to your struggle with artificial versus natural, that the cause of the hole was some sort of a wash out from the sprinkler head that was in or near this hole and Steve's was the, you know, kind of the inspector and maintainor[sic] and runner of this system.
THE COURT: I know that is theory, but there is no evidence that . . . , in fact, is the case. That is the problem.
None of the attorneys present bothered to point out to the judge that she was, in fact, provided with such evidence in the form of the opinion contained in the report of Mansfield's expert.
At oral argument on plaintiff's motion for reconsideration, plaintiff's counsel argued, "[d]efendant's own expert indicates that it was an artificial condition . . . Just for the record his own expert indicates that it was part of the sprinkler system."
Applying the Hopkins factors adopted in Carvalho and reaffirmed in Acuna, Steve's had a duty of reasonable care for the safety of persons who could reasonably be expected would come onto the lawn it was contracted to maintain. The hidden hole certainly presented a foreseeable risk of injury to one of Steve's own workers, as well as to the pedestrians who created the well-worn path where plaintiff fell. Although Steve's had no relationship to plaintiff, it had a contractual relationship with Mansfield, whose employees were also placed at risk by the hole. The testimony of Ingraham, Steve's general manager, arguably acknowledged a practice of alerting Mansfield of any hazards that Steve's would discover. The attendant risk created by the failure to alert the owner of a hazard, like a hidden hole, was substantial. Ingraham also acknowledged that he would have alerted Mansfield of the hole had he been aware of it. Under those circumstances, if a jury concludes that Steve's had actual or constructive knowledge of the hidden hole, Steve's had a duty to take reasonable steps to address the hazard.
A reasonable trier of fact could conclude that Steve's breached that duty. There is no dispute that Steve's was responsible for the maintenance of the lawn and the irrigation in the area where plaintiff fell. The record indicates that the hole was in close proximity to a fence, a light pole and a guide wire, and that Steve's workers regularly used hand-held string trimmers in this area. Ingraham stated that the hole had been there a long time. Based upon the record in this case, a trier of fact could find that Steve's was negligent in failing to report the hidden hole to Mansfield. Alternatively, a trier of fact could conclude that Steve's created the hole through inadequate backfill and compaction following its own irrigation work.
We by no means conclude that Steve's breached a duty. That determination will be made by the trier of fact. Instead, we merely declare the existence of a duty of care, that requires a contractor to exercise reasonable care in the performance of its duties under its contract to provide landscaping services for the owner of this commercial property, so as to maintain the property in a safe condition for any persons the contractor may reasonably expect to come onto the site.
We conclude that this case was not appropriate for summary judgment disposition because it failed to accord plaintiffs the benefit of all reasonable inferences found in the motion record.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION