JOSE PARENTE v. NORMAN L. WILSON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4225-04T24225-04T2

JOSE PARENTE,

Plaintiff-Appellant,

v.

NORMAN L. WILSON, ETTI

HOCHBERG, ETTI HOCHBERG

ET AL., CITY OF JERSEY CITY,

HUDSON COUNTY a/k/a

COUNTY OF HUDSON, CYLA

HOCHBERG, and PHILIP

HOCHBERG,

Defendants-Respondents.

_____________________________

 

Submitted December 6, 2005 - Decided December 19, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-3912-03.

Fredson & Statmore, attorneys for appellant

(Barry Fredson, on the brief).

Brigid Hagerty Farley and Associates, attorneys

for respondents (Deirdre M. Dennis, on the brief).

PER CURIAM

Plaintiff Jose Parente appeals from a Law Division order of Judge Carmen Messano dismissing his complaint and granting summary judgment to defendants Etti Hochberg, Cyla Hochberg and Philip Hochberg. We affirm.

Our standard of review of a summary judgment is the same as that of the motion judge and mandates that we consider the facts alleged in the light most favorable to the non-moving party. R. 4:46-2; Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 529 (1995). In this case there is no dispute that plaintiff suffered personal injuries resulting from a slip and fall from the top of a cliff on the Palisades that was the property of the City of Jersey City and slid down a funnel-shaped crevice some eighty feet until he landed on the roof of a van parked on property owned by the Hochberg defendants.

The property from which plaintiff fell is a right-of-way atop the Palisades Cliffs. The Palisades are a narrow ridge of steep cliffs along the west side of the Hudson River stretching north from Jersey City over twenty miles to Nyack, New York. Formed millions of years ago, the Palisades rise vertically from near the edge of the river with elevations of up to 600 feet. Most of the land is owned and managed by the states of New Jersey and New York. The remainder is a mixture of public and private lands. It is undisputed that the top of the cliff from which plaintiff fell is the property of Jersey City. The westerly edge of the Hochberg property extends to a point somewhere below the ridge of the cliffs, but the parties were unable to determine the boundary line other than it was somewhere on the slope near the crest.

Plaintiff lived in the area most of his life and was familiar with the Palisades. On March 16, 2001, he was walking on Mountain Road, which runs parallel to the Palisades. Homes were on his right or westerly side, and trees and vegetation along the small strip of land atop the cliffs were on his left. He was walking for no particular purpose, "just walking around looking for a bottle of beer or whatever . . . kicking stones." The paved road ended and became a gravel and dirt path. He passed by a section of guardrail placed perpendicular to block vehicular traffic and noticed a stone rubble wall about fifty feet long, as well as a weathered sign reading, "Private Property. Do not enter." The gravel and dirt path narrowed to a rough trail. Plaintiff was curious as to whether the trail connected with Franklin Street. He continued walking until the trail narrowed to about a foot wide with dense vegetation which extended up as high as his chin. Plaintiff knew he was close to the cliff edge but did not know how close. He turned around to head back to Mountain Road, pushing through hedges, branches and brambles until he saw some logs or boards in front of him. As he stepped around them, the path "bottomed out." He lost his footing and fell down a crevice, sliding about eighty feet through shrubs on the rocky surface until he struck the roof of the van parked on the Hochberg property.

Plaintiff's complaint named defendants Norman L. Wilson, a property owner on the west side of Mountain Avenue, the County of Hudson, the City of Jersey City, and the Hochbergs. A voluntary stipulation of dismissal was entered as to Wilson and Hudson County, and a settlement was reached with Jersey City, leaving only the Hochbergs as defendants. Judge Messano granted the Hochbergs' motion for summary judgment and issued a comprehensive written opinion on March 22, 2005, setting forth his reasons for concluding that the Hochberg defendants owed no duty to plaintiff so that the allegation of negligence could not be sustained. This appeal followed.

Historically, premises liability for persons injured by a dangerous condition or the owner or possessor of land turns on the status of the person injured with a highest degree of care owed to an invitee and a minimal degree to a trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-38 (1993); Prosser and Keeton on Torts, pp. 393-395 (5th ed. 1984). A landowner has no duty to a trespasser with respect to the natural conditions on the property as opposed to artificial changes made that pose a dangerous risk. See, e.g., McColley v. Edison Corp. Ctr., 303 N.J. Super. 420 (App. Div. 1997); cf. Ocasio v. Amtrak, 299 N.J. Super. 139, 146 (App. Div. 1997) (an exception to general rule as to trespassers exists when property itself is a "dangerous instrumentality"); see also Restatement (Second) Torts, 334 (1976). Since the Palisades are a natural formation and there has been no showing of any artificial alteration or condition on that part of the slope owned by the Hochbergs, the defendants owed no duty to defendant as a trespasser under the common law. Dobbs, The Law of Torts, Vol. I, p. 592 (2001). While our Supreme Court has noted that the common law categories of entrants on property defining a landowner's duty have undergone alteration and refinement, our Court has noted that when applied flexibly, the common law restrictions constitute a balanced method to assess the liability of landowners. Vega by Muniz v. Piedilato, 154 N.J. 496, 501-03 (1998); Hopkins, supra, 132 N.J. at 436-38.

Plaintiff argues that he was not a trespasser on the Hochberg property because he entered their property "involuntarily" as he slid down from the cliff. He relies upon Eden v. Conrail, 87 N.J. 467 (1981), in which the plaintiff fell from a train platform after suffering a grand mal seizure and was struck by an oncoming Conrail train. The Supreme Court held that the Railroad Immunity Act was inapplicable because the plaintiff's fall was unintentional. In remanding, the Court stated that while the record "strongly indicate[s] that the plaintiff was not a trespasser," id. at 474, the railroad was free to argue the issue on remand. However, the court cautioned by way of dicta:

[P]laintiff, under the facts in the present record, could very well be considered as one authorized to be on railroad property. Because Eden was clearly an invitee in terms of his presence in the train station and on the platform, the defendant railroad was required "to use reasonable care to make the premises safe." E.g., Handleman v. Cox, 39 N.J. 95, 111 (1963). Plaintiff surely did not cognitively desire to leave the authorized area, but did so involuntarily. Accordingly, if the railroad inadequately protected against an individual's inadvertent entrance onto a dangerous area, the plaintiff may very well have remained an invitee, or as noted by Judge Fritz, have become a licensee or a "tolerated intruder," rather than a trespasser, even though he was not expressly "invited" into the area where the harm occurred. The Appellate Division also opined that a person not on another's property pursuant to conscious choice is not a trespasser. 175 N.J. Super. at 276. However, neither the parties nor the appellate court had the benefit of addressing that particular issue unencumbered by the railroad immunity act, N.J.S.A. 48:12-152, and therefore we do not here pass upon it.

[Ibid.]

Eden is clearly distinguishable from the case at bar. Plaintiff entered the trail from which he fell by his own volition and exposed himself to a known risk. Moreover, the plaintiff in Eden was a business invitee, and the Court held that his status did not change when he fell onto the tracks. Eden could arguably call for a duty by Jersey City to construct a barrier to prevent a person from falling and sliding down its property, but it cannot be interpreted to impose a duty on an adjacent landowner who is not responsible for the fall.

Plaintiff relies upon the following section of the Jersey City Municipal Code the standard of care to be imposed upon defendants:

Maintenance of Exterior of Premises Free of Hazards and Unsanitary Condition

A. Exterior of the premises and all structures thereon shall be kept free of all nuisances, unsanitary conditions and fire or safety hazards in the public areas of the foregoing shall be removed and abated properly by the owner or manager.

B. Without limiting the generality of subsection a, the maintenance includes:

. . . .

(5) Providing a fence or all of sufficient height to prevent persons from falling down the sharp drop and grade whenever there exists on any land a sharp drop in the grade of such land from the level for the street or sidewalk of said land or wherever there is a sharp drop in grade from said land to the level for the street or sidewalk and maintaining said fence or wall in safe and sound condition.

Plaintiff's reliance upon the municipal code is misplaced. While violation of a municipal ordinance may be evidence of a breach of duty, the ordinance does not create a tort duty. Brown v. St. Venantius School, 111 N.J. 325, 335 (1988); Smith v. Young, 300 N.J. Super. 82, 95 (App. Div. 1997). Also, plaintiff argues that a legal duty is attributed to defendants by the foreseeability of harm to a person falling from the cliff. However, there is no showing that defendants had knowledge or should have had knowledge of the condition of the land owned by Jersey City at the crest of the cliff. While plaintiff so speculates, the record contains no substantiation. Furthermore, plaintiff's contention that foreseeability of possible harm to a trespasser or "tolerated intruder" is insufficient of itself to impose a duty of reasonable care under the circumstances at bar. That is, while forseeability is a significant factor, it does not equate to a duty. See Zielinski v. Profess. Appraisal Assoc., 326 N.J. Super. 219 (App. Div. 1999). The relationship between the parties, the opportunity to exercise care in the public interest and predictability in amelioration of the risk must also be considered. Alloway v. Bradlees, Inc., 157 N.J. 221, 237 (1999); Hopkins, supra, 132 N.J. at 433; Raimo v. Fischer, 372 N.J. Super. 448, 453 (App. Div. 2004).

Here, foreseeability was speculative at best, and there is no showing how defendant could meliorate the risk of a person falling from the crest of the land owned by another. The record does not indicate where a fence should be constructed on defendants' property other than the plaintiff's argument that defendants should have constructed it on somewhere down from the cliff. Nor is there any showing of the length of the proposed fence or the practicality of erecting one on defendants' property.

After review of the record on appeal, we affirm the entry of summary judgment in favor of the defendants.

Affirmed.

 

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December 19, 2006