JOSEPH OSTROWSKY VS. PAMELA JENGO (L-1405-17, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4069-18T1
JOSEPH OSTROWSKY,
Plaintiff-Appellant,
v.
PAMELA JENGO and
BOROUGH OF HASBROUCK
HEIGHTS,
Defendants-Respondents.
______________________________
Telephonically argued February 25, 2020 -
Decided March 25, 2020
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-1405-17.
E. Drew Britcher argued the cause for appellant
(Britcher Leone, LLC, attorneys; E. Drew Britcher, of
counsel; Tyrone Frederick Sergio, on the briefs).
Douglas M. Barnett argued the cause for respondent
Pamela Jengo (Gregory P. Helfrich & Associates,
attorneys; Douglas M. Barnett, on the brief).
David J. Ruitenberg argued the cause for respondent
Borough of Hasbrouck Heights (Murphy McKeon,
P.C., attorneys; David J. Ruitenberg, on the brief).
PER CURIAM
In this trip and fall case, plaintiff appeals from an April 8, 2019 order
granting summary judgment to defendant Pamela Jengo—a single-family
residential homeowner—and defendant Borough of Hasbrouck Heights (the
Borough)—the town in which Jengo resided. We affirm as to Jengo, applying
settled law pertaining to residential property owners. We reverse as to the
Borough, concluding that there are genuine issues of material fact as to whether
it had notice of the dangerous condition.
We review the order de novo, applying the same legal standards that
govern summary judgment motions. Steinberg v. Sahara Sam's Oasis, LLC, 226
N.J. 344, 349-50 (2016). That is, we consider the factual record, and reasonable
inferences that can be drawn from those facts, "in the light most favorable to the
non-moving party," and then decide the legal question of whether the moving
party is entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226
N.J. 166, 184 (2016) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995); R. 4:46-2(c)).
I.
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We begin by addressing plaintiff's arguments as to Jengo. Plaintiff
contends that Jengo—the residential property owner—had a duty to "remedy
and repair" a defective public sidewalk in front of her residence because she
knew that a dangerous condition existed for approximately thirteen years and
did nothing about it. Plaintiff maintains that failing to impose such a duty will
allow residential property owners to ignore known-dangerous deterioration on
their sidewalks. We apply decades of precedent by the New Jersey Supreme
Court and conclude—like the judge—that Jengo owed no duty.
We look at the pertinent facts in the light most favorable to plaintiff.
Plaintiff tripped on an elevated and cracked public sidewalk slab (the dangerous
condition) located in front of Jengo's single-family residence. Jengo knew about
the dangerous condition but did not affirmatively create it. It is undisputed that
Jengo did not construct the sidewalk, make any repairs to the sidewalk, or
exercise any control over the sidewalk. The area of the accident did not have
any plantings, trees, nor shrubs. The dangerous condition pre-existed Jengo's
purchase of her home.
To prove a claim of negligence, a plaintiff must demonstrate: "(1) [A]
duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual
damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. County
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of Essex, 196 N.J. 569, 584 (2008)). A plaintiff bears the burden of proving
negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213-14 (App. Div.
2004), and must prove that a defendant's unreasonable acts or omissions
proximately caused his or her injuries, see Camp v. Jiffy Lube No. 114, 309 N.J.
Super. 305, 309-11 (App. Div. 1998). The presence or absence of an enforceable
duty is generally a question of law for the court. Clohesy v. Food Circus
Supermarkets, Inc., 149 N.J. 496, 502 (1997); see also Doe v. XYC Corp., 382
N.J. Super. 122, 140 (App. Div. 2005). As to this last point—the imposition of
a duty—the common law on premises liability for residential property owners
has been settled for decades.
Prior to 1981, our courts did not distinguish between commercial or
residential property owners. That is, commercial and residential property
owners in this State, at that time, could not be held liable for injuries occurring
on public sidewalks abutting their property, except "for the negligent
construction or repair of the sidewalk . . . or for direct use or obstruction of the
sidewalk by the owner in such a manner as to render it unsafe for passersby."
Yanhko v. Fane, 70 N.J. 528, 532 (1976) (citations omitted). The law changed
in 1981.
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In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149 (1981), the New
Jersey Supreme Court modified the law solely as to commercial landowners,
holding that such owners could be liable for injuries sustained on sidewalks
adjacent to their properties. The Court explicitly limited its holding in Stewart
to commercial owners, emphasizing that "[t]he duty to maintain abutting
sidewalks that we impose today is confined to owners of commercial property ."
Id. at 159. The practical impact of that change in the law recognized that a duty
existed for commercial property owners but not for residential property own ers.
Our premises liability sidewalk jurisprudence has maintained this
distinction. The Restatement (Second) of Torts § 363 (Am. Law Inst. 1965)
provides the basis for this State's governing legal principles in the area of
sidewalk liability. See Deberjeois v. Schneider, 254 N.J. Super. 694, 698-702
(Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992). The judge
in Deberjeois explained,
[t]he rule of non-liability for natural conditions of land
is premised on the fact that it is unfair to impose
liability upon a property owner for hazardous
conditions of his [or her] land which he [or she] did
nothing to bring about just because he [or she] happens
to live there.
[Id. at 702-03.]
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Over the years, the Court has deliberately refused to alter the legal distinction
between commercial and residential property owners.
For example, in Luchejko v. City of Hoboken, 207 N.J. 191, 206 (2011),
the Court observed that "[o]ur decisions consistently reflect that residential
property owners stand on different footing than commercial owners who have
the ability to spread the cost of the risk through the current activities of the
owner." The Court emphasized the importance of adhering to this distinction,
stating:
The commercial/residential dichotomy
represents a fundamental choice not to impose sidewalk
liability on homeowners that was established nearly
three decades ago. Stare decisis thus casts a long
shadow over these proceedings. We should not lightly
break with a line of decisions that has promoted settled
expectations on the part of residential property owners.
....
The rationale of Stewart . . . remains sound and
there are no changed circumstances such that
reevaluation is necessary. Although the sidewalk
liability line of cases has contained spirited
concurrences and dissents arguing for broader liability,
those separate opinions registered simple
disagreements with the majorities' point of view and did
not foretell difficulties that have come to pass in
administering the commercial/residential distinction.
[Id. at 208-09 (citations omitted).]
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As we noted in 2013: "(1) [T]he Court has acknowledged repeatedly that
residential property owners are generally not liable for sidewalk injuries; (2) the
Court has maintained the fundamental notion that commercial property owners
are better prepared to spread the risk of loss to innocent third parties than
residential homeowners[.]" Grijalba v. Floro, 431 N.J. Super. 57, 66 (App. Div.
2013); see also Lodato v. Evesham Township, 388 N.J. Super. 501, 507 (App.
Div. 2006) (holding residential landowners remain protected by common law
public sidewalk immunity); Smith v. Young, 300 N.J. Super. 82, 84-85 (App.
Div. 1997) (reiterating that commercial landowners are responsible for
maintaining sidewalks abutting their property). Residential owners, however,
are liable if they—unlike here—negligently build or repair the sidewalk in a
manner that causes the sidewalk's dangerous condition. Luchejko, 207 N.J. at
210. These legal principles have remained unchanged—by our Court and
Legislature.
Plaintiff urges us to apply the standards set forth in the Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 54 (Am. Law
Inst. 2012).1 Section 54 of the Third Restatement provides in pertinent part:
1
Plaintiff has not cited, and we are unaware of, any jurisdiction in the nation
that has adopted section 54 of the Third Restatement.
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(b) For natural conditions on land that pose a risk of
physical harm to persons or property not on the land,
the possessor of the land
(1) has a duty of reasonable care if the land is
commercial; otherwise
(2) has a duty of reasonable care only if the possessor
knows of the risk or if the risk is obvious.
See Michael K. Steenson, Minnesota Negligence Law and the Restatement
(Third) of Torts: Liability for Physical and Emotional Harms, 37 Wm. Mitchell
L. Rev. 1055, 1058-62 (2011) (discussing the Third Restatement and how it
differs from the Second Restatement).
Founded in 1923, the American Law Institute (ALI) embarks on law
reform projects, known as "Restatements," seeking to clarify areas of the
common law. David A. Logan, Article, When The Restatement Is Not A
Restatement: The Curious Case Of The "Flagrant Trespasser," 37 Wm. Mitchell
L. Rev. 1448, 1448-49 (2011). The Restatements' goal is not only to clarify the
law, but also to promote changes "which will tend better to adapt the laws to the
needs of life." Id. at 1452 (citation omitted).
The Restatements' reporters occasionally assert positions that lack legal
authority and scholarship. Id. at 1457-58 (explaining that the named reporter of
section 402A of the Second Restatement provided "scant doctrinal foundation,
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as [he] could point to virtually no case authority and relatively little
scholarship"). Pertaining to the Third Restatement, the reporters created a
general duty of care and an entirely new legal category called the "flagrant
trespasser." Id. at 1475. The reporters recognized that such changes are not
based on common law, but rather "a belief that existing law was flawed." Ibid.
Restatements are non-binding unless adopted by a court or legislature. Id. at
1482.
The New Jersey Supreme Court has not adopted section 54 of the Third
Restatement since the section's creation in 2012. Our courts have only adopted
specific sections of the Third Restatement. This state adopts portions of the
Restatements when it sees fit. See Ross v. Lowitz, 222 N.J. 494, 507-08 (2015)
(stating that the Court adopted section 824 of the Second Restatement). For
instance, the Court adopted section 3 of the Third Restatement's "indeterminate
product test" in Myrlak v. Port Authority of New York & New Jersey, 157 N.J.
84, 103-07 (1999). This court also adopted section 16 of the Third Restatement
of Products Liability in Green v. General Motors Corp., 310 N.J. Super. 507,
526-27 (App. Div. 1998).
There is a consensus that residential property may be liable for dangerous
conditions on abutting sidewalks only when their affirmative acts cause the
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dangerous conditions. C.P. Jhong, Liability of Abutting Owner or Occupant For
Condition of Sidewalk, 88 A.L.R. 2d 331 (1963); see also The Honorable Mark
C. Dillon, Breaking The Ice: How Plaintiffs May Establish Premises Liability
In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not
Visible Or Apparent To Property Owners, 43 Hofstra L. Rev. 691, 709 (2015)
(stating that New York imposes liability on a residential property owner when
the landowner affirmatively acts). 2 In New Jersey, single-family residential
property owners' liability is based on common law; no statute imposes such a
duty.
In the absence of contrary guidance from our State's highest court or the
Legislature, we accordingly continue to apply the Second Restatement
standards. As to the Third Restatement, we recently said "[b]ecause we are an
intermediate appellate court, we are bound to follow the law as it has been
expressed by . . . our Supreme Court." Scannavino v. Walsh, 445 N.J. Super.
2
See also Donald F. Burke, Jr., Slipping Through the Cracks: The Shoddy State
of New Jersey Sidewalk Liability Law Cries Out For Repair, 36 Seton Hall Leg.
J., 225, 227-32 (2012) (discussing New Jersey's history of sidewalk liability and
recent developments pertaining to commercial property owners). This article
argues against imposing liability on any property owner, even commercial
property owners, unless such owners affirmatively act and cause the dangerous
condition. Id. at 267-68. The author does not mention section 54 of the Third
Restatement.
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162, 172-73 (App. Div. 2016) (second alteration in original) (quoting Lake
Valley Assocs., LLC v. Township of Pemberton, 411 N.J. Super. 501, 507 (App.
Div. 2010)); Lodato, 388 N.J. Super. at 507 (declining to adopt Section 54 of
the Third Restatement). Thus, we affirm as to Jengo.
II.
We now turn to the Borough. The judge granted summary judgment to
the Borough, finding it had no actual or constructive notice of the dangerous
condition. On the notice issue, plaintiff contends fact issues preclude the entry
of the order.
Generally, "a public entity is 'immune from tort liability unless there is a
specific statutory provision' that makes it answerable for a negligent act or
omission." Polzo v. County of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v.
Borough of Wallington, 171 N.J. 3, 10 (2002)). A public entity may be liable if
"a negligent or wrongful act or omission of [its] employee . . . create[s] the
dangerous condition" or, if it "had actual or constructive notice of the dangerous
condition . . . a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition." N.J.S.A. 59:4-2(a), (b). As the Court
has repeatedly stated,
to impose liability on a public entity pursuant to
[N.J.S.A. 59:4-2], a plaintiff must establish the
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existence of a "dangerous condition," that the condition
proximately caused the injury, that it "created a
reasonably foreseeable risk of the kind of injury which
was incurred," that either the dangerous condition was
caused by a negligent employee or the entity knew
about the condition, and that the entity's conduct was
"palpably unreasonable."
[Vincitore v. N.J. Sports & Exposition Auth., 169 N.J.
119, 125 (2001) (quoting N.J.S.A. 59:4-2).]
The law is also settled as to what constitutes constructive notice of a
dangerous condition under the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to 12-
3. N.J.S.A. 59:4-3(b) provides:
A public entity shall be deemed to have constructive
notice of a dangerous condition . . . only if the plaintiff
establishes that the condition had existed for such a
period of time and was of such an obvious nature that
the public entity, in the exercise of due care, should
have discovered the condition and its dangerous
character.
[(Emphasis added).]
It is true that "[t]he mere '[e]xistence of an alleged dangerous condition is
not constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super.
238, 243 (App. Div. 2013) (second alteration in original) (quoting Sims v. City
of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). But here, the factual
question is whether the dangerous condition—a two-inch differential in the
sidewalk slabs—was so obvious that the Borough "in the exercise of due care,
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should have discovered the condition and its dangerous character," especially
because the dangerous condition existed for a minimum of thirteen years.
It is settled that "[w]hether a public entity is on actual or constructi ve
notice of a dangerous condition is measured by the standards set forth in
N.J.S.A. 59:4-3(a)3 and (b), not by whether [for example] 'a routine inspection
program' by the [public entity] . . . would have discovered the condition." Polzo,
209 N.J. at 68. Plaintiff does not argue that the Borough failed to conduct a
routine inspection, and had it done so, the Borough would have discovered the
dangerous condition. Rather, plaintiff contends that Borough representatives
visited Jengo's house at the time she purchased her home, and that they "should
have" discovered the dangerous condition.
The judge concluded that the Borough did not have actual or constructive
notice of the sidewalk's dangerous condition. He based that finding on Borough
representatives' deposition testimonies. The Borough's Department
Administrator, Mr. Nicholas Melfi, Jr., did not know of the dangerous condition.
The Borough's Zoning Official, Mr. Gino Tessaro, testified that he does not
evaluate a property's exterior when he inspects a property for a certificate of
3
Under section (a), "[a] public entity shall be deemed to have actual notice of
a dangerous condition . . . if it had actual knowledge of the existence of the
condition and knew or should have known of its dangerous character."
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occupancy. The Borough's inspector in its building department, Mr. Ronald
Monteleone, testified that his predecessor did not inspect the property's exterior
when Jengo bought the property.
There is nothing in the record to show the Borough received any
complaints about the sidewalk's dangerous condition from Jengo, its employees,
or the community. Thus, it did not have actual notice. However, viewing all
facts in the light most favorable to plaintiff, there are genuine issues of fact
pertaining to constructive notice. Although the record does not reflect any direct
complaints, the dangerous condition existed for at least thirteen years. And it is
undisputed that the Borough's representative arrived at Jengo's home to issue a
certificate of occupancy when she purchased her home.
Plaintiff also contends that the Borough had constructive notice because
it undertook "Streetscape" projects at intersections near residential properties,
which reduces the grade of the sidewalk to the roadway. Plaintiff asserted that
Borough representatives should have discovered the dangerous condition during
these projects because its engineers were present near the dangerous condition
to prepare specifications for outside bidding. Giving the benefit of all
reasonable inferences, we conclude that genuine issues of material fact exist as
to whether the dangerous condition—a two-inch slab differential—was "of such
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an obvious nature that the [Borough], in the exercise of due care, should have
discovered the condition and its dangerous character," (emphasis added),
especially because Borough representatives were present on and around Jengo's
property.
Affirmed as to Jengo; reversed and remanded as to the Borough. We do
not retain jurisdiction.
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