IVONNE VASQUEZ NAVARRO v. LUIGI NAZZARO, et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3996-04T5

IVONNE VASQUEZ NAVARRO,

Plaintiff-Respondent,

v.

LUIGI NAZZARO, ELVA NAZZARO,
JNG CONSTRUCTION, GIOVANNI
GRANATA, NICOLA GRANATA and
GRANATA & SONS,

Defendants,

and

BAY REALTY COMPANY, INC.,

Defendant-Appellant.
_____________________________

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October 19, 2006

Argued May 23, 2006 - Decided

Before Judges Coburn, Collester and S.L.
Reisner.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, L-897-03.

Diane Marie Acciavatti argued the cause for
appellant.

Kenneth F. D'Amato argued the cause for
respondent (Rosenfelt & D'Amato, attorneys;
Mr. D'Amato, of counsel and on the brief).

PER CURIAM
This is a slip-and-fall case which resulted in a jury verdict assessing liability and damages for negligence against a predecessor in title and an independent contractor who constructed the commercial property, a two-family house.
At about 8 p.m. on January 6, 2002, after a snowfall of one to two inches, thirty-one-year-old plaintiff Ivonne Vasquez Navarro was walking in front of a two-family house at 484 Summer Street in Paterson, heading toward her brother s home, when she stepped in a five-inch gap in the sidewalk curbing and fell. She was unable to pull out her foot and had to lie in pain on the pavement until help arrived. She was taken to the hospital where x-rays disclosed displaced fractures of both her fibula and tibia at the point of the ankle joint. She underwent surgery, and a metal plate was inserted. She testified that more than a year later she still suffered pain from walking short distances or standing for short periods.
Plaintiff initiated her lawsuit against Luigi and Elva Nazzaro, owners of the property; the prior owner, Bay Realty Co.; its principal, Giovanni (John) Granata; and JNG Construction, which built the two-family house on the property. At the time of the accident, the Nazzaros used 484 Summer Street as a two-family rental property, having purchased it from Bay Realty in December 2000. Bay Realty, a corporation wholly owned by John Granata, purchased the property as a vacant lot in 2000, and contracted with JNG to build the two-family house. The owners-stockholders of JNG were Nicola Granata, John's cousin, and Nicola's sons.
Building and construction permits were obtained in the name of Bay Realty, which was registered as a builder under the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20. As construction progressed, it became necessary to cut an opening in the sidewalk to run drain lines from the house to the street. Pipes were placed in the sidewalk cut in the curbing, and a mason subcontractor hired by JNG cemented over the cut.
George Evans, a senior engineer with the City of Elizabeth Engineering Department, testified that sidewalk and curb construction requires a permit. Inspections are conducted while the work is performed and at its completion. Since neither Bay Realty nor JNG obtained a permit for sidewalk construction, no inspections were made. Evans also testified that concrete and blue stone were the only materials permitted for sidewalk construction and that a recent inspection of 484 Summer Street revealed that asphalt was used in the sidewalk area where plaintiff slipped.
Nicola Granata, the principal owner of JNG, testified that he "made a mistake" when he laid out the pipe. He laid the pipes to the curb but not through the curb on both sides of the property. As a result, after the concrete was poured, he had to cut out a section so the water could run freely. Nonetheless, he said there was no opening in the curb when JNG finished its work, contrary to what was shown in the photograph of the location taken after the plaintiff fell. Similarly, John Granata also testified that the cut in the curb depicted in the photographs did not exist when Bay Realty sold the property to the Nazarros. Luigi Nazzaro testified that he and his wife used the property strictly for rentals and were unaware of any problem with the curb or any dangerous condition on the property. He did not know of plaintiff's accident until he received a letter just prior to the complaint in this action. At that time he examined the area and saw a missing section of concrete curbing. He had Nicola Granata take corrective action.
Plaintiff contends that JNG "cut corners" by removing the section of the curb and failing to replace it, thereby creating a hazard which resulted in plaintiff's injury. She further argued that Bay Realty was negligent by breaching its duty to oversee the construction and make sure all permits were obtained.
The trial judge gave the following charge with respect to Bay Realty's negligence as a former owner of the property:
Thus, Bay Realty was negligent and is liable to the plaintiff even though it did not own the property at the time of the plaintiff's fall if you find the following: That there was a condition on the sidewalk, that was - - or curb that was dangerous in that it created an unreasonable risk of harm for pedestrians; second, that it was created or maintained by the defendant, Bay Realty, and third, that Bay Realty, as the former owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent person would have done under the same circumstances, then they would be negligent.
[Emphasis added.]
 
The judge also charged the jury as to Bay Realty's duty to make "reasonable observations of its property . . . in order to discover any dangerous condition."
Prior to the verdict, an application was made by defense counsel for Bay Realty and JNG to dismiss against the individual defendants under the corporate immunity doctrine. The trial judge granted the motion with the proviso that the issue could be revisited at the conclusion of the trial.
The jury found in favor of plaintiff and assessed negligence against Bay Realty at forty percent and JNG at sixty percent. The Nazzaros were found not negligent. Damages were awarded to plaintiff of $40,000 for future medical expenses and $216,975 for pain and suffering. Following the verdict, Bay Realty and JNG moved for a new trial or remittitur. Plaintiff filed a motion for reconsideration of the trial judge's ruling that Nicola Granata was immune and to hold him vicariously liable for the sixty percent negligence assessed against JNG. The trial judge entered an amended judgment reflecting no cause of action against John Granata individually but specifying that Nicola Granata was individually liable for the negligence assessed to JNG. The amended judgment as molded provided that Bay Realty was also was vicariously liable for the sixty percent negligence attributed to JNG and Nicola Granata.
Bay Realty alone has appealed. It first argues that the trial judge erred in molding the jury verdict to reflect it was vicariously liable for the negligence attributed to JNG. The judge gave the following reasons:
I think the cases indicate and the law is in New Jersey that a landowner remains liable for negligence which occurred as a result of work done by contractors on his property. That's the theory of vicarious liability. That's what makes Bay Realty responsible for what the construction and they should be as a matter of law vicariously liable for that, notwithstanding that they've been found to be a certain percent negligent by the jury.
 
Bay Realty argues that it cannot be held negligent as a property owner since it hired JNG as an independent contractor to construct the sidewalk. Generally, one who hires the independent contractor is not liable unless the work contracted for involves work that is inherently dangerous to others or "'necessarily involved danger to others, unless great care was used,'" Majestic Realty Associates, Inc. v. Toti Contracting Co., Inc., 30 N.J. 425, 439 (1959)(damage to adjoining property during demolition); see also Great Northern Insurance Co. v. Leontarakis, ___ N.J. ___ (August 21, 2006)(non-delegable duty to provide lateral support to neighboring property owner s land during construction); or unless the principal "retains control of the manner and means of the doing of the work" or "engages an incompetent contractor." Mavrikidis v. Petullo, 153 N.J. 117, 133 (1998).
However, a landowner is liable for selling property that is in a dangerous condition. In Cogliati v. Ecco High Frequency Corp., 92 N.J. 402 (1983), the plaintiff fell on a public sidewalk in front of business premises and sued the owner and prior owner, alleging that the sidewalk was in a dangerous condition due to improper construction and maintenance. The Supreme Court held that a predecessor in title who has created or maintained the dangerous sidewalk condition should remain legally responsible to an injured pedestrian after title has been conveyed. "Creating a dangerous sidewalk, which by its nature the public is invited to use, is not functionally different from placing an unsafe product in the stream of commerce." Id. at 413. See also Vasquez v. Mansol Realty Assocs., 280 N.J. Super. 234, 238 (App. Div. 1995) (a commercial landowner cannot absolve itself from liability for a dangerous sidewalk condition by assigning that responsibility to a tenant); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 299-300 (1984) (Schreiber, concurring in part; dissenting in part); Restatement (Second) of Torts 422 at p. 405 (1965); Prosser & Keeton on the Law of Torts, 71, p. 505 (5th Ed. 1984).
In Wickner v. American Reliance Insurance Company, 141 N.J. 392 (1995), the Supreme Court recognized the continuing viability of Cogliati and explained it as follows:
The thrust of Cogliati . . . is its recognition of a continuing responsibility for either the creation or maintenance of a dangerous condition that occurred during ownership and persists after the owner has sold the property.
 
[141 N.J. at 398.]
 
We therefore hold that Bay Realty cannot avoid or reduce its liability to plaintiff by claiming that JNG, whom it hired to install the sidewalk prior to sale, was negligent in constructing the sidewalk because its duty to maintain a safe sidewalk was non-delegable. The jury verdict assessing negligence to Bay Realty by necessity incorporated the finding that Bay Realty knew or should have known about the defect in the curbing. Since it was owner, builder of record and seller of the property and was found negligent with respect to the sidewalk, it was answerable to a third-party victim of that negligence for the full measure of her damages.
The verdict against JNG determines Bay Realty's right to obtain contribution or indemnification from JNG for the amount of JNG's negligence found by the jury. It does not require plaintiff to pursue JNG for its share of the verdict, in addition to trying to collect from Bay Realty.
Bay Realty next argues that the verdict of negligence exonerating the Nazzaros was contrary to the weight of the evidence and to the duty of a commercial landowner to maintain an abutting sidewalk area in a reasonably safe condition. It asserts that in finding JNG and Bay Realty negligent, the jury had to conclude that the hole in the curb was created and still in existence when the property was conveyed to the Nazzaros prior to the accident, which would mean that the Nazzaros were also liable. When Bay Realty raised the issue on its motion for a new trial, the trial judge denied the application, stating:
[The jury] evidently believed Mr. Nazzaro . . . never saw these cuts in the curb, and I guess when he told them that even after he was advised that somebody had fallen, he said when he went back to look he still didn't immediately go to the place where this person fell. His attention was directed to the other side of the property.
 
I guess if you take all that together, they believe that Nazzaro was, you know, the guy [who] bought the place. [The Nazzaros] didn't live there. Perhaps if he had lived there, there might have been some thought that he should have known, but he didn't live there. He rented it out to somebody else. [The jury] clearly believed him, and I believe just as clearly that they didn't believe Mr. Granata . . . .
 
We agree that the jury's verdict reflected disbelief in the testimony of John Granata and Nicola Granata that the curb was intact when the property was transferred to the Nazzaros. Nicola Granata testified that he cut out a section of the curb to lay a pipe from the house to the street and that a mason then cemented over the curb cut. However, the photographs in evidence show saw marks in the curb, which could lead the jury to believe that the curb was cut into after the cement had been laid and dried. For the Nazzaros to be held responsible for a dangerous condition on the sidewalk, the jury had to find that they knew or should have known of the condition but failed to take reasonable action to remedy it. Brown, supra, 95 N.J. at 293; Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48 (App. Div. 1973), aff'd o.b., 63 N.J. 577. The jury could well have found that because Bay Realty provided a certificate of occupancy, the Nazzaros reasonably relied upon it to reflect that the property was in good condition. There are no grounds to find there was a miscarriage of justice to justify granting a new trial. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).
Defendant further argues that the judge's charge never informed the jury that the duty of a commercial landowner to maintain the abutting sidewalk was applicable to the Nazzaros. Since Bay Realty did not object to the charge, our standard of review requires a showing of plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2; State v. Chew (I), 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). However, the court's instructions as to the Nazzaros' liability did not constitute error, much less plain error. The judge clearly defined the elements of a landowner's liability and related the principles of liability relevant to the Nazzaros as well as to JNG and Bay Realty.
Bay Realty next argues that testimony adduced by plaintiff as to the subsequent repair of the hole in the curb by Nicola Granata was so prejudicial as to constitute judicial error. Notably, no objection was made to the testimony, and counsel for Bay Realty later elicited testimony on the same subject. An objection was made after the plaintiff's summation, but the trial judge provided a curative instruction that evidence of the repair was not to be considered in assessing legal responsibility for plaintiff's accident and injuries. There was no error.
Defendant's final argument relates to the jury award of $216,975 for non-economic damages or pain and suffering. The plaintiff testified as to her injuries, her pain and suffering at the time of the incident, her current need for surgery and subsequent therapy, and her continued pain in the normal use of her leg and ankle. We do not find that the damage award was so disproportionate to her injury and resulting disability as to constitute a miscarriage of justice. Accordingly, we find no error in the denial of remittitur. Baxter, supra, 74 N.J. at 598.
Affirmed.

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