FRICTIANA PEREZ VS. ANALIS FERNANDEZ(L-2057-12, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3004-14T1
FRICTIANA PEREZ, and her
husband, PASCUAL PEREZ,
Plaintiffs-Appellants,
v.
ANALIS FERNANDEZ, ESPERANZA
FERNANDEZ, and JUANA FERNANDEZ,
Defendants-Respondents.
_______________________________
Submitted September 13, 2016 – Decided June 21, 2017
Before Judges Kennedy and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-2057-12.
Spevack Law Offices, P.A., attorneys for
appellants (Howard H. Sims, on the brief).
Zirulnik, Sherlock & DeMille, attorneys for
respondent Analis Fernandez (Elizabeth R.
Brennan, of counsel; Ellen G. Bertman, on the
brief).
Leary Bride Tinker & Moran, P.C., attorneys
for respondents Esperanza Fernandez and Juana
Fernandez (Wendy A. Reek, on the brief).
PER CURIAM
Plaintiff Frictiana Perez (Frictiana) broke her wrist when
she tripped and fell on a sidewalk adjacent to a three-family home
owned by defendant Analis Fernandez and partially occupied and
managed by Analis' parents, defendants Esperanza and Juana
Fernandez.1 Plaintiffs, Frictiana and her husband, appeal from
orders granting summary judgment to defendants and denying their
motion for reconsideration. We affirm because without an expert,
plaintiffs could not prove liability since they could not establish
how long the alleged defect in the sidewalk existed and who was
responsible for the defect.
I.
On September 7, 2010, Frictiana tripped on a sidewalk that
ran adjacent to property owned by defendant Analis Fernandez. The
property contained a three-family home, and Analis' parents,
defendants Esperanza and Juana Fernandez, occupied one of the
homes and managed the other two homes. Moreover, the parents had
previously owned the three-family home and had sold it to Analis.
Analis does not reside at the property.
Plaintiffs filed a complaint in March 2012, claiming that
defendants negligently built or maintained the sidewalk.
Defendants initially failed to respond to the complaint and
1
Defendant-Respondent Juana Fernandez was incorrectly designated
as "Joana Fernandez."
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plaintiffs obtained a default. Thereafter, the default was vacated
and the parties engaged in discovery.
At her deposition, Frictiana testified that she was walking
on the sidewalk next to defendants' property when she tripped and
fell. She explained that she did not see what caused her to trip
until she fell and then, while lying on the ground, she saw that
the sidewalk was "raised." Frictiana was alone when she fell and,
thus, there were no other eyewitnesses.
After Frictiana fell, her husband, Pascual Perez (Pascual),
found her while she was still lying on the sidewalk. Pascual
testified that he did not know what caused Frictiana to fall.
Pascual also testified that there was construction activity taking
place on the street next to the sidewalk where his wife fell.
During discovery, plaintiffs produced photographs of the sidewalk.
Those photographs showed that there was a raised slab in the area
of the sidewalk where Frictiana fell.
All three defendants testified that they were not aware of
any problem with the sidewalk before Frictiana fell. Defendant
Esperanza Fernandez further explained that, years prior to
Frictiana's fall, in 2001, he requested the City of Perth Amboy
to cut down a tree because it was damaging the roof of his home
and the roots were damaging the sidewalk. He also testified that
once the tree was cut down, he was not aware of any problem with
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the sidewalk. He went on to testify that after Frictiana fell,
he hired someone to fix a portion of the sidewalk and that person
pointed out that the slab Frictiana tripped on should also be
repaired.
Plaintiffs retained a liability-engineering expert. The
expert prepared two reports. One report opined that the sidewalk
was in an unsafe condition because of construction in the street
adjacent to the sidewalk, and thus, the construction contractor
was responsible for the displacement in the sidewalk. The other
report opined that the sidewalk was displaced and that the
homeowners were responsible for failure to maintain the sidewalk.
During discovery, plaintiffs served the first expert report,
identifying the construction contractor as the responsible party.
Plaintiffs maintain that the first expert report was served by
mistake. After the close of discovery, plaintiffs served the
second expert report, identifying defendants as the responsible
parties. Defendants moved to suppress the report and that motion
was granted. Thereafter, plaintiffs announced that they would
proceed to trial without an expert.
Defendants subsequently moved for summary judgment.
Defendants contended that plaintiffs could not establish
negligence without an expert because plaintiffs could not show how
and when the sidewalk had been damaged. Thus, defendants argued
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that plaintiffs could not prove that they caused or knew of the
defect in the sidewalk before Frictiana tripped and fell.
The motion judge heard oral argument and granted summary
judgment to all three defendants. The judge reasoned that an
expert was needed to testify that a dangerous condition existed
with the sidewalk and that defendants should have known of that
condition. The motion judge also reasoned that plaintiffs had
produced one expert report that opined that the construction
contractor caused the sidewalk to settle. Although the judge was
aware that plaintiffs were no longer relying on that expert or the
expert report, he reasoned that defendants could call the expert
to testify. Moreover, the judge reasoned that even if the expert
was not called, there was other evidence showing that there was
construction activity. Ultimately, the motion judge reasoned that
there was nothing in the record to establish how long the alleged
damage to the sidewalk existed, and thus, plaintiffs could not
show that defendants should have known of the alleged dangerous
condition. On December 19, 2014, the judge entered orders granting
summary judgment to defendants.
Plaintiffs moved for reconsideration. The court heard oral
argument on that motion and denied it in an order entered on
February 20, 2015. Plaintiffs now appeal from the orders granting
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summary judgment to defendants and the order denying the motion
for reconsideration.
II.
On appeal, plaintiffs make three arguments: (1) the trial
court improperly considered the expert report and violated
plaintiffs' due process because plaintiffs were no longer relying
on that expert; (2) the evidence, including photographic evidence,
was sufficient to create a genuine issue of material fact requiring
submission of the matter to a jury; and (3) the trial court erred
in denying the motion for reconsideration.
In reviewing a summary judgment order, we use a de novo
standard of review and apply the same standard employed by the
trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
405 (2014). Accordingly, we determine whether the moving party
has demonstrated there were no genuine disputes as to material
facts and, if so, whether the facts, viewed in the light most
favorable to the non-moving party, entitle the moving party to a
judgment as a matter of law. Id. at 405-06; Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46.
Plaintiffs claimed that defendants were negligent in building
or maintaining the sidewalk. "[A] negligence cause of action
requires the establishment of four elements: (1) a duty of care,
(2) a breach of that duty, (3) actual and proximate causation, and
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(4) damages." Davis, supra, 219 N.J. at 406 (alteration in
original) (quoting Jersey Cent. Power & Light Co. v. Melcar Util.
Co., 212 N.J. 576, 594 (2013)). Plaintiff bears "the burden of
establishing those elements 'by some competent proof.'" Townsend
v. Pierre, 221 N.J. 36, 51 (2015) (quoting Davis, supra, 219 N.J.
at 406). Simply showing the occurrence of an incident causing the
injury sued upon is not sufficient to support a finding of an
incident of negligence. Long v. Landy, 35 N.J. 44, 54 (1961).
"Negligence is a fact which must be shown and which will not be
presumed." Ibid. "In an ordinary negligence case, the plaintiff
bears the burden of showing the unreasonableness of the defendant's
conduct (in other words, the defendant's breach of a duty owed)."
Feldman v. Lederle Labs., 132 N.J. 339, 349-50 (1993).
Here, plaintiffs needed to show that defendants had breached
their duty owed to those walking on the sidewalk abutting their
property. In that regard, "commercial property owners would be
'liable for injuries on the sidewalks abutting their property that
are caused by their negligent failure to maintain the sidewalk in
reasonably good condition.'" Qian v. Toll Bros. Inc., 223 N.J.
124, 135 (2015) (quoting Stewart v. 104 Wallace Street, Inc., 87
N.J. 146, 150 (1981)). The duty of commercial property owners is
limited, however. "[T]hey are merely required to take reasonable
care to prevent foreseeable harm." Vega by Muniz v. Piedilato,
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154 N.J. 496, 522 (1998) (Handler, J., concurring). Accordingly,
an injured plaintiff must prove that defendants had actual or
constructive knowledge of the dangerous condition that caused the
injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291
(1984).2
Defendants all testified that they were not aware of the
raised slab on which Frictiana fell. Thus, plaintiffs needed some
evidence showing that defendants should have known of the problem
with the slab. To make such a showing, plaintiffs needed evidence
of how the slab was damaged and how long the slab was damaged. In
the absence of expert testimony, there was no competent evidence
to show defendants were negligent.
Plaintiffs first argue that the trial court improperly
considered an expert report upon which they were no longer relying.
Our review of the record establishes that the court did not
improperly consider the expert report. The expert report was
produced in discovery and was submitted to the court as part of
2
We assume for this analysis that defendant Analis owned a
commercial property and thus had a duty to maintain the sidewalk
abutting her property. See Wilson v. Jacobs, 334 N.J. Super.
640, 642-43 (App. Div. 2000) (holding that non-owner occupied
house entirely rented to tenants was 'commercial' notwithstanding
that tenant was family member); see also Luchejko v. City of
Hoboken, 207 N.J. 191, 206 n. 5 (2011) (noting that residential
property can be considered commercial, depending on how the
property is used).
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the papers for consideration on the motions for summary judgment.
The trial court did not rely on the expert report. To the contrary,
the trial court made the point that without an expert report,
plaintiffs could not establish that defendants should have known
of the alleged damage to the sidewalk with sufficient time to
repair the damage. In that regard, the court pointed out that
with or without considering the expert report, there was evidence
indicating that construction work was taking place on the street
next to the sidewalk. Consequently, defendants would be able to
argue that the construction may have caused the damage and there
was no proof as to when the damage was actually caused. Such a
consideration by the trial court did not violate any concept of
due process.
Next, plaintiffs argue that there was sufficient evidence in
the record, including photographic evidence, to create a genuine
issue of material fact. The photographs that plaintiffs rely on
show that a slab in the sidewalk was uneven. What that
photographic evidence could not show is when the slab became
uneven. In other words, without expert testimony, there was no
proof that defendants had sufficient time to become aware of the
slab and to repair it.
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Having determined that summary judgment was properly granted,
plaintiffs cannot establish that the motion for reconsideration
was improperly denied.
Affirmed.
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