DOROTHY SPRUCE VS. ROUTE 18 SHOPPING CENTER ASSOCIATES, (L-5162-13, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0048-16T3
DOROTHY SPRUCE,
Plaintiff-Appellant,
v.
ROUTE 18 SHOPPING CENTER
ASSOCIATES, BURGER KING
CORP., PICTURE PERFECT
LANDSCAPING, LLC, ROESCHEISE
ASSOCIATES, and ABOVE ALL
LANDSCAPING,
Defendants,
and
IPT, LLC d/b/a FM FACILITY
MAINTENANCE, NORTHWEST COMPANIES,
INC., and PINO'S LANDSCAPING,
Defendants-Respondents.
_______________________________________
Submitted September 19, 2017 – Decided November 16, 2017
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
5162-13.
Falcon Law Firm, LLC, attorneys for appellant
(Alexander R. DeSevo, on the briefs).
Faust Goetz Schenker & Blee, LLP, attorneys
for respondent IPT, LLC (David I. Blee and
Laura A. Lelio, on the brief).
Callahan & Fusco, LLC, attorneys for
respondent Northwest Companies, Inc. (Ryan D.
Lang, on the brief).
Kent & McBride, PC, attorney for respondent
Pino's Landscaping (Christopher D. Devanny, on
the brief).
PER CURIAM
In 2012, plaintiff injured her right knee when she tripped
over a mulch-covered tree stump at the East Brunswick Burger King
restaurant, where she worked as the general manager. In 2013,
plaintiff filed a personal injury complaint against various
defendants. She now appeals from a series of July 27, 2016 Law
Division orders granting summary judgment dismissal of her claims
against defendants FM Facility Maintenance (FM), Northwest
Companies, Inc. (Northwest), and Pino's Landscaping (Pino's). We
affirm.
We summarize the pertinent facts, viewing them in a light
most favorable to plaintiff, the party against whom summary
judgment was sought. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); see R. 4:46-2.
On April 2, 2012, plaintiff arrived at the Burger King parking
lot between 8:45 and 8:50 a.m. As she walked through the parking
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lot to enter the restaurant, she noticed a newspaper blowing in
the wind and observed a portion become stuck underneath some
bushes, about ten feet from the restaurant door. The area
contained approximately three to four bushes surrounded by mulch.
Plaintiff walked towards the bushes intending to pick up the
newspaper. As she stepped off the sidewalk and onto the mulch,
she "tripped over the stump" and landed on her knee, with resulting
injury. According to plaintiff, she did not see the stump because
"[i]t was covered with mulch."
Plaintiff stated Burger King did not require her to inspect
the landscaping work outside the restaurant, but she often took
it upon herself to do so. Plaintiff did not notice any issues in
the area of the stump prior to her injury.
At the time of plaintiff's accident, Burger King had a
contract with defendant FM, effective August 31, 2011, to perform
maintenance services for the restaurant, including landscaping,
snow plowing, and general repairs. FM, in turn, retained defendant
Northwest as an independent contractor, effective September 13,
2011, to perform landscaping services. Northwest then entered
into a subcontract agreement with defendant Pino's, whereby Pino's
agreed to provide exterior maintenance services at the restaurant.
The contract between Northwest and Pino's required Pino's to
perform various "in scope" services defined in attached schedules.
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The contract further provided for Pino's to "occasionally complete
'out of scope' services," but such services required prior approval
of Northwest. The list of "in scope" services specifically noted
that mulching was "not approved." Moreover, according to the
owner of Pino's, Pino Tortorici,1 the contract did not authorize
Pino's to remove tree stumps; instead, Pino's first had to obtain
a "work order" before completing such work.
Pursuant to its contract with Northwest, Pino's expected to
begin providing regular monthly maintenance to the subject Burger
King on April 1, 2012. However, on March 27, 2012, the Northwest
account manager emailed Pino to inform him Burger King requested
a "one[-]time early service" at the restaurant. Pino testified
at deposition that his company performed a "spring cleanup" on
March 30, 2012. This process involved removing loose debris such
as leaves, sticks, and branches from the grass, mulch beds, and
sidewalks; cutting the grass; and "blow[ing] off" the lawn.
According to Pino, the purpose of the "spring cleanup" was to
"give [the premises] a one[-]time run-through and clean it up and
make it look nice before the actual work in April was started."
In her pleadings, plaintiff alleged defendants negligently
maintained the premises by allowing it to become hazardous and
1
We refer to Pino Tortorici as "Pino" and to his company as
"Pino's."
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negligently failed to remove the debris that caused her injury.
At the completion of discovery, defendants moved for summary
judgment.
At the summary judgment hearing, Judge Arnold L. Natali, Jr.
heard oral argument and then addressed plaintiff's claims against
each defendant separately. The judge granted summary judgment to
each remaining defendant, including Pino's, Northwest, and FM,
finding plaintiff failed to identify a duty that any defendant
arguably breached.
In a supplemental written opinion, Judge Natali expanded on
his reasoning, first finding Pino's duty "was limited by the scope
of the services for which [it] was hired." He noted Pino's had
not been hired to perform mulch services, and because the cleanup
was Pino's first time on the premises, it did not create the
dangerous condition. Rather, an unidentified landscaping company
had performed work prior to Pino's. The judge also noted, "While
[Pino] may have observed tree stumps on limited areas of the
property, there is nothing in the record to indicate that [Pino]
became aware of the particular condition at the location where
plaintiff allegedly fell." The judge thus found neither duty nor
breach.
Next, addressing Northwest and FM, the judge concluded:
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Nothing in the contract imposed a duty upon
either company to inspect and ensure the
landscaping services . . . previously
performed by other vendors. . . . Thus, FM
and Northwest would only have a contractual
obligation to correct the hazardous condition
. . . if it had resulted from an unsatisfactory
service performed by one of its vendors.
The judge also addressed the opinion of plaintiff's expert,
an engineer, who opined that FM's failure "to properly and safely
maintain this property in compliance with the minimum requirements
of the Property Maintenance Code [of] the Township of East
Brunswick caused this accident." The judge rejected the expert's
opinion because "[t]he opinion is entirely speculative, untethered
to the facts and therefore 'net.'" The judge found no "factual
predicate" for the expert's contention that the local property
code applied here to make FM "responsible for 'properly and safely'
maintaining the property under all circumstances."
Judge Natali therefore granted summary judgment to FM,
Northwest and Pino's, finding
no basis upon which the court could impose a
duty upon the defendants, either pursuant to
a contractual obligation or under common
law . . . . Simply put, the record does not
create a factual question that any defendant
had anything to do with the creation of the
alleged dangerous condition.
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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
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). 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, 142 N.J. at 540.
"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 a
party 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, 502-03 (1996), as well as such
factors as "the relationship of the parties, the nature of the
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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 omitted), cert.
denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008).
On appeal, plaintiff raises the following points of argument:
POINT I
THE TRIAL COURT'S DECISION THAT RESPONDENTS
OWED NO DUTY TO APPELLANT REQUIRES A DE NOVO
REVIEW BY THE APPELLATE COURT BECAUSE DUTY IS
A QUESTION OF LAW.
POINT II
RESPONDENTS WERE NOT ENTITLED TO SUMMARY
JUDGMENT BECAUSE THE TRIAL COURT JUDGE ERRED
IN FINDING THAT RESPONDENTS OWED NO DUTY TO
APPELLANT.
POINT III
RESPONDENTS['] PREVENTATIVE MAINTENANCE
CONTRACTOR SHOULD HAVE INSPECTED THE PREMISES
AND FOUND THE STUMP.
POINT IV
RESPONDENT PINO'S LANDSCAPING HAD ACTUAL OR
CONSTRUCTIVE KNOWLEDGE OF THE STUMP AND HAD A
DUTY TO TAKE REASONABLE STEPS TO ADDRESS THE
HAZARD.
POINT V
ADEQUATE NOTICE EXISTED OF THE HAZARDOUS
STUMPS AT THE SUBJECT PROPERTY.
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POINT VI
NORTHWEST HELD A SUBSTANTIAL RIGHT TO CONTROL
PINO’S ACTIVITIES, SUCH THAT NORTHWEST CAN BE
DEEMED VICARIOUSLY LIABLE FOR PINO’S
NEGLIGENCE.
POINT VII
FM WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE
HAZARD BY REVIEWING PROPERTY PHOTOS OR
REVIEWING PINO'S JOB PERFORMANCE.
POINT VIII
RESPONDENTS DISREGARDED EAST BRUNSWICK'S
PROPERTY MAINTENANCE CODE AND THEIR FAILURE
TO COMPLY CAUSED THE ACCIDENT.
We find no merit in any of these arguments and conclude they
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set
forth by Judge Natali in his cogent written opinion issued on July
14, 2016. We add the following comments.
While the record reflects that Pino's performed a spring
clean-up at the subject Burger King on March 30, 2012, three days
before plaintiff's accident, Northwest had issued Pino's a very
specific and detailed scope of work order, which did not include
stump removal and specifically prohibited mulching. Because the
scope of work provision of Pino's contract specifically prohibited
mulching, Pino believed that stump removal was also not authorized.
Additionally, the only work Pino's was specifically authorized to
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perform on March 30 was a "spring clean-up," which meant mowing
the lawn and other limited services, such as picking up loose
trash. Pino had never been to this Burger King before and was not
hired to complete a safety inspection. A photo of the premises,
allegedly taken right after Pino's completed its work, shows no
visible stumps in the mulch beds.
The record reflects the subject stump was a hidden danger.
The record contains no evidence that any defendant performed the
mulching that resulted in the concealment of the stump, or had any
responsibility for removing it. As the manager of the restaurant,
plaintiff took it upon herself to inspect the landscaping work;
as a result, she was in a good position to identify the alleged
dangerous condition in the landscaping, and she observed none.
We further note that Judge Natali correctly rejected the
opinions of plaintiff's expert under the net opinion doctrine. An
expert's "bare conclusions, unsupported by factual evidence" are
inadmissible as a net opinion. Buckelew v. Grossbard, 87 N.J.
512, 524 (1981). The expert is required "to give the why and
wherefore of his [or her] expert opinion, not just a mere
conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540
(App. Div.), certif. denied, 145 N.J. 374 (1996). As the judge
found, the record lacks the essential "factual predicate" for the
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expert's opinion that the municipal property code applied to make
FM responsible for safely maintaining the subject property.
Affirmed.
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