JOANNA McCORMACK v. TRI-HEALTH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2462-04T32462-04T3

JOANNA McCORMACK,

Plaintiff-Appellant,

v.

TRI-HEALTH, A Division of TMC

SERVICES INC., TMC SERVICES, INC.,

Defendant-Respondent.

________________________________________________

 

Argued March 15, 2006 - Decided April 28, 2006

Before Judges Stern and Humphreys.

On appeal from the Superior Court of New

Jersey, Law Division, Civil Part,

Essex County, Docket No. L-1066-03.

Benjamin M. Del Vento, Jr., argued the

cause for appellant.

Deirdre M. Dennis argued the cause

for respondent (Brigid Hagerty

Farley, attorney)

PER CURIAM

Plaintiff contends she was injured when she slipped and fell on a wet and slippery floor in the lobby of the Saint Barnabas Ambulatory Care Center. The Center had engaged the defendant Tri-Health to provide general cleaning services at the Center. Plaintiff contends that she fell because Tri-Health did not maintain the floor in a safe condition.

The complaint was dismissed by summary judgment. Plaintiff appeals. She contends: 1) the motion for summary judgment should not have been heard because Tri-Health's counsel violated

R. 4:36-3(b); 2) Tri-Health had notice of the hazardous condition of the floor. We disagree and affirm the dismissal of the complaint.

I

The case was scheduled for trial on November 1, 2004. Plaintiff's counsel states the following. He was ready for trial on that date. However, on October 21, 2004, counsel for Tri-Health contacted his office and requested that the trial date be changed to a settlement conference. He consented. The court could not accommodate a settlement conference on November 1. Tri-Health's counsel then requested that the settlement conference be adjourned to December 8 or 9. He acquiesced in an effort to resolve the matter. On October 27, 2004, counsel for Tri-Health then adjourned the trial date to January 24, 2005. On October 28, 2004 counsel for Tri-Health without any advance notice filed a motion for summary judgment.

Plaintiff's counsel argues that counsel for Tri-Health "used the Court and the settlement conference as a charade to adjourn the trial date in order to have this dispositive motion heard prior to trial in a clear violation of Rule 4:36-3."

Counsel for Tri-Health states that she did not commit any impropriety. She states that the court scheduled a settlement conference for December 16, 2004 with a trial date of January 23, 2005. After conferring with her client, "it was determined that a Summary Judgment motion would be the proper way to determine liability against defendants and to have the issues and exhibits before the court at the time of settlement conference."

R. 4:36-3 deals with the trial calendar. Subsection (b) of that rule provides:

(b) Adjournments, Generally. An initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of an attorney, a party, or a witness shall be granted if made timely in accordance with this rule. The request shall be made in writing stating the reason for the request and that all parties have consented thereto. The written adjournment request, which shall be submitted to the civil division manager, shall also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem requiring the adjournment is resolved. If consent cannot be obtained or if a second request is made, the court shall determine the matter by conference call with all parties. Requests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week. No adjournments shall be granted to accommodate dispositive motions returnable on or after the scheduled trial date.

Plaintiff's counsel argued before the motion judge that the last sentence of that subsection was violated by counsel for Tri-Health, and, therefore, the judge should not entertain the motion.

The motion judge disagreed. He said that it was the court that picked the January trial date, and if defense counsel wanted to make a motion, she had no obligation to notify plaintiff's counsel personally that she intended to file a motion.

The purpose of subsection (b) is to prevent the virtually automatic adjournment of trial dates that too often occurred prior to the rule changes brought about by the Best Practices reforms. See Pressler, Current N.J. Court Rules, comment on R. 4:36-3. One common practice prior to Best Practices was to request an adjournment of the trial in order that a summary judgment motion could be heard. The purpose of the last sentence of subsection (b) was to stop such requests in order to foster an important goal of the "Best Practices" rule amendments which is to provide trial date certainty and thereby establish a credible trial calendar. See Ponden v. Ponden, 374 N.J. Super. 1, 8 (App. Div.) certif. denied, 183 N.J. 212 (2005). (One of the purposes of the "Best Practices" rule amendments is to render meaningful the arbitration and trial dates scheduled by the courts); Zadigan v. Cole, 369 N.J. Super. 123, 131 (Law Div. 2004) (Trial date certainty is a vital goal of "Best Practices."); See also Pressler, Current N.J. Court Rules, comment on R. 4:36-3.

However, if the court adjourns the trial for a different reason, here a proposed settlement conference, then the purpose of the rule will not be contravened if a motion for summary judgment can be heard prior to the new trial date.

Put simply, a litigant cannot use a motion for summary judgment as a reason to request an adjournment of a trial date. But nothing in either the letter or the spirit of the court rule will prevent a motion for summary judgment from being heard prior to the trial date if the motion is filed and served in accordance with the court rules, and the return date is prior to an adjourned trial date.

The motion here was properly served and filed within the time provided for in the court rules. The return date of the motion was prior to the trial date. Plaintiff's counsel had ample time in which to prepare to defend against the motion. The motion judge did not accept plaintiff's argument that counsel for the defendant acted improperly. The judge said that he would as "soon accept" defense counsel's representation as to the reason for the adjournment request.

No useful purpose would be served under those circumstances by declining to hear the summary judgment motion. Summary judgments have a salutary purpose. See Brill, supra, at 541 (Summary judgment affords protection against groundless claims and frivolous defenses; it saves litigants the expense of protracted litigation and permits judicial resources to be applied to cases which merit a trial.) The motion judge was correct in entertaining this motion.

II

Plaintiff contends that she has presented a prima facie case and therefore summary judgment should have been denied.

Summary judgment will be granted if there is no genuine issue as to any material fact challenged and the moving party is entitled to a judgment as a matter of law. R. 4:46-2 (b). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c); see also Brill, supra.

Plaintiff asserts that Tri-Health would clean the area where the plaintiff fell five to six times during an eight hour shift and each cleaning would last approximately 30 minutes. In addition, the defendants would place throw rugs on top of the terrazzo marble floor during the fall and winter to help prevent snow, ice and water from being carried onto the floor. The person in charge of cleaning for the defendant admitted in his deposition that water on the floor would be a hazardous and dangerous condition.

A company engaged to clean the floor of a building must do so in a good and workmanlike manner. Aronsohn v. Mandara, 98 N.J. 92, 105 (1984). A breach of that duty renders the company liable to third persons who may be injured as a result of the breach. Ibid; See also, Restatement (Second) of Torts, 383 (1965).

However, the company is not an insurer that the floor will be clean at any given time. Water on the floor could easily have been the result of people with wet shoes walking on the floor after Tri-Health had finished their cleaning, or a spill occurring after the cleaning. Plaintiff has not produced any evidence that Tri-State had actual or constructive notice of any water on the floor, or that it performed its cleaning services in an improper manner. See Nisivocci v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (Ordinarily an injured plaintiff asserting a breach of a duty of due care to maintain premises in a safe condition or to avoid creating an unsafe condition, must show that the defendant had actual or constructive knowledge of the dangerous condition that caused the injury.)

The absence of evidence establishing prima facie that this defendant had actual or constructive knowledge of any dangerous condition requires the grant of defendant's motion for summary judgment. See R. 4:46-2(b) and Brill, supra.

 
Affirmed.

(continued)

(continued)

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A-2462-04T3

April 28, 2006