JANE ECCLESTON VS. MEYER GOLD (L-1974-14, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0055-17T2
JANE ECCLESTON,
Plaintiff-Appellant,
v.
MEYER GOLD and NATHAN
HABER, as partners trading as
GOLD ENTERPRISES, a
partnership of the State of New
Jersey; GOLD ENTERPRISES,
a general partnership, organized
and existing under the laws of
New Jersey; SOUTHBROOK
GARDENS; SALEM
MANAGEMENT COMPANY;
GOLD HABER a/k/a HABER
GOLD and DEVELOPERS
FUNDING COMPANY,
Defendants-Respondents.
________________________________
Argued November 7, 2018 – Decided December 17, 2018
Before Judges Fisher and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1974-14.
John T. Rihacek argued the cause for appellant (Pavliv
& Rihacek, LLC, attorneys; John T. Rihacek, on the
brief).
Thomas J. Coffey argued the cause for respondents
(Donnelly Minter & Kelly, LLC, attorneys; Patrick B.
Minter, of counsel; Thomas J. Coffey, on the brief).
PER CURIAM
Plaintiff Jane Eccleston appeals an order granting summary judgment that
dismissed her complaint against defendants Meyer Gold, Nathan Haber, Gold
Enterprises, Southbrook Gardens, Salem Management Company, Gold Haber
a/k/a Haber Gold, and Developers Funding Company for personal injury
damages arising from a slip and fall accident. She also appeals the denial of
reconsideration. Because defendants had no duty to plaintiff, we agree that
summary judgment was appropriately granted.
We summarize and consider the factual record in a light most favorable to
plaintiff. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Defendants own and manage Southbrook Gardens Apartments in
Eatontown. Plaintiff was a tenant on February 8, 2014. At about noon that day,
plaintiff walked out to her car parked along Southbrook Drive. It had snowed a
few days earlier. Plaintiff crossed over the grass strip between the sidewalk and
the street where her car was parked, using a path through the snow made by a
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neighbor. This was the shortest distance between plaintiff's apartment and her
car. She came back home at eight p.m., parking in the same spot. She used the
same path to return to her apartment, noticing this time that it was slippery.
About forty-five minutes later, she walked out to her car to obtain her owner's
manual and used the same path, which still was slippery. Plaintiff claimed she
slipped and fell on the path when returning to her apartment, suffering injuries.
She reported the accident two days later to the apartment's leasing agent.
Plaintiff filed a complaint in June 2014 seeking compensation for personal
injuries sustained in the fall. She alleged defendants failed to inspect, repair or
maintain the property for the presence of ice and snow. The complaint also
alleged defendants violated "[N.J.A.C.] 5:10-1.1 et seq."
During discovery, plaintiff's engineering expert said the accident site was
in a hazardous condition when plaintiff slipped. He alleged the property
maintenance code for Eatontown and regulations for maintenance of hotels and
multiple dwellings required snow and ice to be cleared from sidewalks,
walkways and stairways to allow tenants safe access to parking areas, but he
acknowledged the path used by plaintiff was not one of these.
Defendants filed a motion for summary judgment. Plaintiff opposed,
alleging she had to use the path "as the intersecting corners of the complex's
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roads were low areas that had iced over." She claimed a nearby intersection was
icy although she did not walk over to check it. Plaintiff alleged the ice formation
at the intersection was due to "poor water runoff control where the apartment
complex's roads meet."
The trial court granted summary judgment to defendants. In its written
opinion, the court found defendants were "not negligent in either their actions
or omissions relating to the maintenance of the cleared path through the snow
and on the grass." The court rejected plaintiff's argument about the lack of
handicapped parking under N.J.S.A. 55:13A-7.3 as "irrelevant" because plaintiff
did not make this claim in her complaint or answers to discovery. The court
found the path was not "created or maintained" by defendants. It was "an
obvious and known dangerous condition apparent to plaintiff." The court held
that defendants owed no duty of care to plaintiff because "she knew the path was
created by her neighbor and the footing was slippery even on the date of the
accident." Her argument that using the path was safer was not supported. Based
on the lack of duty, defendants' argument that plaintiff's expert report constituted
a net opinion was moot.
Plaintiff's motion for reconsideration was denied because she "[could not]
overcome the case law which clearly state[d] the [d]efendants (landowners) did
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not owe [p]laintiff (as business invitee) a duty of care if [p]laintiff already knew
of the known dangerous condition." Plaintiff never disputed that she knew a
neighbor shoveled the path nor that it was slippery when she used it before her
fall.
On appeal, plaintiff argues there was no safe access to her car and the path
provided the "only reasonable and logical alternative route . . . to avoid the
hazardous iced over sidewalk corners that could not be safely traversed." She
claimed defendants' maintenance personnel were on notice of the iced over
sidewalk corners because in the past they would shovel out paths in the snow
banks to avoid the iced over areas; they could have salted the areas, used
cardboard to prevent "freeze over and . . . traction" or sand for "foot traction."
Plaintiff claims defendants violated N.J.S.A. 55:13A-7.3 of the Hotel and
Multiple Dwelling Law by not providing handicapped parking for her close to
her apartment or a safe place to park. She claims she should not have to use the
sidewalk to the "corner of the apartment block" to then walk out in the open
street to access her car.
We review a court's grant of summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted if "the pleadings, depositions, answers to
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interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)).
The landlord of a multi-family premises has a duty to maintain all parts of
the premises in good repair and in a safe condition. Dwyer v. Skyline
Apartments, Inc., 123 N.J. Super. 48, 51 (App. Div. 1973). The duty is to
"exercise reasonable care." Id. at 52. A landlord owes a duty "to exercise
reasonable care to guard against foreseeable dangers arising from use of those
portions of the rental property over which the landlord retains control." Scully
v. Fitzgerald, 179 N.J. 114, 121-22 (2004). In Stewart v. 104 Wallace St., Inc.,
87 N.J. 146, 160 n.7 (1981), the Court indicated that an apartment building is
"commercial" for purposes of the duty to maintain abutting sidewalks.
A landowner's duty to a business invitee is to "'conduct a reasonable
inspection to discover latent dangerous conditions' as well as 'to guard against
any dangerous conditions . . . that the owner either knows about or should have
discovered.'" Parks v. Rogers, 176 N.J. 491, 497-98 n.3 (2003) (quoting
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). "[F]oreseeability
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is one constant that plays a significant role in fixing a landowner's duty[.]" Vega
by Muniz v. Piedilato, 154 N.J. 496, 501 (1998).
Generally, there is no duty by a landowner to warn of a known dangerous
condition of property of which "the guest is aware . . . or by reasonable use of
the facilities would observe it." Tighe v. Peterson, 175 N.J. 240, 241 (2002)
(social guest, aware of the depth, dove into the shallow end of the pool); Vega,
154 N.J. at 509 (trespasser jumping over an open air shaft); Mathews v. Univ.
Loft Co., 387 N.J. Super. 349, 356 (App. Div. 2006) (in products liability action,
danger of falling from a loft bed was a risk that was "open and obvious"). The
obligation to make a condition safe or give reasonable warning "ordinarily does
not exist where the invitee knows of the condition and realizes the risk."
Pearlstein v Leeds, 52 N.J. Super. 450, 459 (App. Div. 1958). In Sussman v.
Mermer, 373 N.J. Super. 501, 505 (App. Div. 2004), we noted that "if 'the guest
is aware of the dangerous condition or by a reasonable use of his faculties would
observe it, the host is not liable' because of the guest's failure to use due care."
Ibid. (quoting Berger v. Shapiro, 30 N.J. 89, 99 (1959)). However, there are
exceptions to this rule, "as in the case of icy steps or an otherwise dangerous
surface which of necessity has to be traversed as the only reasonable means of
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essential passage." Pearlstein, 52 N.J. Super. at 459; see W. Prosser, Handbook
of the Law of Torts § 61 at 394-95 (4th ed. 1971).
Plaintiff was well aware that the path was slippery. She admitted it was
slippery at eight p.m. when she returned to her apartment and then forty-five
minutes later when she went back out to her car. Defendants did not create the
path. They did not require her to use this path to her car or to park in this
location. Plaintiff did not explore any other options once she knew this path
was slippery. She apparently did not move her car to another area that could
have been safer, even if the nearest intersection was icy. Plaintiff acknowledged
that the sidewalks were clear of snow.
The cases cited by plaintiff are distinguishable. In Williams v.
Morristown Memorial Hosp., 59 N.J. Super. 384, 391-92 (App. Div. 1960), a
plaintiff tripped and fell over a low wire fence he did not see that was there to
prevent people from crossing a grass strip. Here, plaintiff was well aware of the
slippery condition before her fall.
In Bedell v. St. Joseph's Carpenter, 367 N.J. Super. 515 (App. Div. 2004)
we held that a commercial landowner could have liability for "injuries sustained
by a pedestrian on the grass strip between the sidewalk and curb in front of its
building" because visitors had to cross the grassy strip, it was dark and there
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was no street lighting. However, in Chimiente v. Adam Corp., 221 N.J. Super.
580 (App. Div. 1987), a shopping center was not liable to a plaintiff injured on
a dirt path used by pedestrians when the store provided other ways to access its
parking lot safely. Because it was not reasonably foreseeable that plaintiff
would repeatedly use the slippery path without considering other alternatives for
her safety, and because defendants did not require her to use this path or park in
this location, we agree with the trial judge that defendants did not have a duty
to plaintiff and that summary judgment was appropriate.
Plaintiff alleges the trial court did not consider N.J.S.A. 55:13A-7.3
before it dismissed her case. That statute provides that an owner of a multiple
dwelling, which provides parking to the occupants, "shall provide parking
spaces for occupants who have physical disabilities located at the closest
possible proximity to the principal accesses of the multiple dwelling." She
alleged defendants did not provide her a parking space near to her apartment
even though she had a disabled parking permit from the Motor Vehicle
Commission and walked using a cane. Plaintiff did not reference N.J.S.A.
55:13A-7.3 in her complaint although she did reference N.J.A.C. 5:10-1.1
generally, which are the regulations for the maintenance of hotels and multiple
dwellings. She also raised the parking spot issue in opposition to defendants'
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motion for summary judgment. 1 However, plaintiff never made clear where the
parking spot should have been that would have allowed her access to her
residence, or that she had to park where she did because of the absence of a
handicapped parking spot.
Affirmed.
1
N.J.A.C. 5:10-24.4(a) mirrors the statutory requirement set forth in N.J.S.A.
55:13A-7.3.
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