FRANCIS SCARDILLO VS. DAVID INNACONE (L-3995-13, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0847-16T2
FRANCIS SCARDILLO,
Plaintiff-Appellant,
v.
DAVID INNACCONE and POOL TOWN,
Defendants,
and
PM CONTRACTORS,
Defendant-Respondent.
_____________________________________________________
Submitted October 31, 2017 – Decided November 15, 2017
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No.
L-3995-13.
Escandon, Fernicola, Anderson & Covelli,
attorneys for appellant (Robert M. Anderson,
of counsel; Scott M. McPherson, on the brief).
Charles A. Little, Jr., attorney for
respondent.
PER CURIAM
Plaintiff Francis Scardillo appeals a summary judgment that
dismissed her personal-injury complaint against defendant PM
Contractors. We affirm because, as a matter of law, plaintiff
could not establish PM's alleged wrongdoing proximately caused her
injuries.
It is undisputed that plaintiff contracted with PM to install
a new fence on her property. Although apparently disputed, we
assume, as required by the applicable standard,1 that the parties'
contract required that PM remove the old fence and that PM failed
to do so. The adjoining property owner, defendant David Innaccone
asked plaintiff about the removal of the old fence. Plaintiff,
unaware the old fence had not been removed, pursued the matter
with PM but without immediate success.
Plaintiff then took matters in her own hands. With Innaccone's
permission, plaintiff, her nephew, and her daughter's boyfriend,
walked around the new fence and onto Innaccone's property for the
purpose of removing the old fence. Plaintiff stepped into a hole
on Innaccone's property, fracturing an ankle and a toe.
There is no allegation that the hole in Innaccone's property
was the result of PM's performance of the contract to install the
new fence. Plaintiff instead claims that PM is responsible for her
1
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
2 A-0847-16T2
injuries because she would not have entered Innaccone's property
but for PM's failure to remove the old fence.
The trial judge rejected this argument and granted summary
judgment in PM's favor. Plaintiff appeals,2 arguing the existence
of a triable issue as to whether it was foreseeable that plaintiff
would be injured due to PM's alleged failure to remove the old
fence.
We find insufficient merit in plaintiff's argument to warrant
further discussion in this opinion, R. 2:11-3(e)(1)(E), and we
affirm substantially for the reasons set forth by Judge James Den
Uyl in his thorough and well-reasoned written decision.
Affirmed.
2
Plaintiff's claim against Innaccone was settled, and her claim
against defendant Pool Town was dismissed by way of a summary
judgment that has not been appealed.
3 A-0847-16T2