KENNETH TERRELL, et al. v. NEW COMMUNITY CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5791-04T55791-04T5

KENNETH TERRELL, Individually

and as Administrator Ad

Prosequendum of the Estate of

HOLLAND TERRELL, deceased,

WESLEY H. TERRELL, AKISHA

TERRELL, and NICOLE O'NEAL,

Plaintiffs-Appellants,

v.

NEW COMMUNITY CORPORATION,

Defendant-Respondent.

_______________________________________

 

Argued June 5, 2006 - Decided July 17, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-739-02.

Brian M. Gerstein argued the cause for appellants (Harkavy, Goldman, Goldman, Caprio & Gerstein, attorneys; Mr. Gerstein, on the brief).

Frederick W. Stevens argued the cause for respondent (Stevens & Schwab, attorneys; Mr. Stevens, on the brief).

PER CURIAM

Plaintiffs appeal from an order entered on May 27, 2005 granting summary judgment in favor of defendant and denying plaintiffs' motion to extend discovery. We affirm.

I.

On December 3, 2000, Holland Terrell (Holland), a resident of defendant's Senior Citizen's Center, a multi-story structure on South Orange Avenue in Newark, fell to his death from the building. Officer Vincent Feliciano, Jr. (Feliciano) of the Newark Police Department responded to the scene. In his report concerning the incident, Feliciano stated that Officer Darren Powell of the Hillsborough Township Police Department had been passing by at the time and was flagged down by Earl Ware (Ware), who lived in an apartment on the 12th floor of the building. Ware told Powell that he had been standing on the corner of South Orange Avenue, waiting for a bus, when he heard a person scream in distress. Ware looked over to the 18th floor of the building and "as his eyes came down towards the building he noticed" a person falling from the building.

The Newark police investigated the incident. Detectives Michael Chirico (Chirico) and William Maldonado (Maldonado) responded to the scene. In his report, Chirico noted that Ware said that he had been waiting at a nearby bus stop, heard a scream and observed an object falling from the 14th floor. Chirico added that they:

were able to find during [our] investigation that the window was unlocked and turned in a 360 [degree] direction. A further inspection of this window showed cigarettes put out in the window[']s frame. The window is approximately 8 to 10 feet wide and approximately 4 to 5 feet in height broken down into three windows with only the center window opened. [There] are [two] locks for this window[;] the lock on the right side is broken and the lock on the left was unlocked. The sill of the window is about a foot.

Chirico further noted that the officers had spoken with tenants on the 14th floor, who said that they are not allowed to smoke in the building or in their apartments. However, the tenants said that it was not uncommon for the occupants of the building to go to a window in the hallway, sit on the sill, smoke a cigarette and blow the smoke out of the window. Chirico wrote that some "of the people even joked around," stating that it is easy to fall out of the window due to its size and the way it opens.

On August 30, 2001, the Essex County Surrogate granted letters of administration ad prosequendum to Kenneth Terrell (Kenneth), who is one of Holland's children. On or about January 11, 2002, Kenneth filed this action asserting wrongful death claims on his own behalf as well as on behalf of Holland's estate and Holland's other children, Wesley H. Terrell, Akisha Terrell and Nicole O'Neal.

Plaintiffs allege that Holland fell from the window to his death "because the window was unsecured and broken, or otherwise in a dangerous condition, allowing it to spin around without any guard-rails, screenings, warnings, or safety devices of any kind." Plaintiffs further allege that defendant, as owner of the premises, negligently failed to keep the premises in a safe condition; did not exercise proper care; caused a dangerous condition to exist; allowed a nuisance to exist; failed to provide proper safeguards or warnings on the property; did not provide safe and clear conditions for persons using the property; and were "otherwise" negligent in the use, care and maintenance of the premises.

In discovery, plaintiffs produced an expert report from Michael G. Natoli, a professional engineer. Natoli explained that on the 14th floor of defendant's building, there are three windows in the hallway. At the time when Holland fell, the center window opened by way of a center pin pivot, which allowed the window pane to turn in a 360-degree direction. The window had locks at the right and left side. Natoli noted that, according to the police report concerning the incident, the lock on the left side of the window was open and the lock on the right side was broken. The sill of the window was about a foot wide and it was 37 1/2 inches vertically above from the floor walking surface.

According to Natoli, Kenneth said that his father was seated on the window ledge smoking a cigarette at the time of the incident. Holland leaned back and the window rotated to an open position, causing Holland to fall rearward and plummet fourteen stories to the ground below. Natoli additionally noted that Ware informed the police that he saw a man fall from the building. Ware commented that he had not seen other persons in or near the windows. Natoli added, "In essence, Mr. Ware states that he did not see anyone push plaintiff out the window." Ware also commented that at times he observed persons smoking cigarettes in the hallway areas near the windows on South Orange Avenue.

Natoli opined that defendant had not properly maintained the subject window, which yielded an unsafe condition for the building occupants. Natoli asserted that, to a reasonable degree of engineering probability, the inoperative locking mechanism on the window was the cause of plaintiff's death. Natoli explained that the window's locking mechanism had to be "in a properly functioning state to ensure the ability of the window to resist inadvertent opening movement when contact is made with same." He stated:

For instance, the window while in a closed state would portray same as being locked and secured against inadvertent movement, when in fact "minor" contact (persons pressing against same) would cause the window to rotate on its center pin into the open orientation, thus exposing dwelling occupants to a dangerous risk of injury. The aforementioned rationale is predicated on the fact that the window in a closed state portrays a false picture of the window being properly secured; whereby, same fails to provide proper closure protection . . . . Therefore, as the plaintiff was seated atop the window ledge fronting the exterior window, the inoperative lock allowed the window to rotate into the open state. This condition caused the plaintiff to free-fall from the 14th floor and plummet downward striking the ground surface areas below, thus causing his fatality to occur. Hence, I conclude that the property owner/responsible entity owed a duty of reasonable care to enhance the safety of pedestrians. In my opinion, the property owner/responsible entity was remiss in allowing the conditions described above to exist at the time of the accident and they clearly bear full responsibility for the plaintiff's injury.

In October 2002, plaintiff's complaint was dismissed without prejudice for failure to provide discovery. After the expiration of 90 days, defendant moved to dismiss the complaint with prejudice, at which time the discovery was provided. Plaintiff's complaint was restored by order entered on April 25, 2003 and discovery was extended for 90 days. On August 8, 2003, discovery was extended for an additional 90 days. The court entered an order on November 21, 2003 granting another 90-day extension of the time for discovery.

On February 2, 2004, the court entered a consent order requiring the Essex County Prosecutor's Office to furnish relevant documents from its investigative file, including the police report and the continuation report. In addition, on February 10, 2004, the court entered an order which required that a representative of Holland's estate appear for a deposition during the week of February 23, 2004. The order further required that all expert reports be produced by March 31, 2004.

Trial in the matter was scheduled for June 13, 2005. On or about April 29, 2005, defendant moved for summary judgment. Plaintiffs filed a cross-motion on May 17, 2005, seeking an order extending the time for discovery so that plaintiffs could depose Detectives Maldonado and Chirico. The motions were heard on May 27, 2005 and the judge rendered a decision on the record.

The judge determined that the wrongful death claim by Holland's children failed because there was no proof that they had relied upon him financially. The judge stated that Holland's annual income was relatively insubstantial and, after payment of rent and the cost of necessities, there was "little else" that could be paid to the children.

The judge also found that there were insufficient facts to support the estate's claim. The judge noted that the claim was based essentially on circumstantial evidence. There was no evidence that anyone had seen Holland on the 14th floor or that he was smoking in front of the window at or about the time of the incident. The judge additionally found that the Natoli's report did not adequately support plaintiffs' claims. The judge stated:

The expert's report, even if I accept it as true that the window was dangerous and that the sidewalk was unyielding and everything else, I cannot determine from the expert's report that there's any causation here between the defective window and [Holland's] death. The entire expert report is premised upon the fact that his son told the expert that he was sitting on the windowsill smoking a cigarette. And obviously the son was not there, [could not] have done it, and, therefore, there's absolutely nothing in this record to support that. It's bald speculation, I think, to put it mildly.

The judge also denied plaintiffs' motion to extend discovery. She found that plaintiffs had not shown exceptional circumstances for a further extension of discovery. The judge added that she did not see how the testimony of either officer would help plaintiffs' case since the officers had not seen Holland fall from the window. The judge entered an order granting summary judgment in favor of defendant and denying plaintiffs' motion to extend discovery. This appeal followed.

II.

Plaintiffs argue that the trial judge erred in granting summary judgment as there were sufficient facts in the record to establish that defendant was negligent and its negligence was a proximate cause of the accident. We disagree.

Initially, we reject plaintiffs' contention that the judge erroneously granted summary judgment in favor of defendant because plaintiffs did not properly respond to defendant's statement of material facts. The rules governing motions for summary judgment require that the moving party submit a statement which sets "forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue" together with appropriate citations to the records "establishing the fact or demonstrating that it is uncontroverted." R. 4:46-2(a). The rule further provides that:

A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of [R. 4:46-2(a)] demonstrating the existence of a genuine issue as to the fact.

[R. 4:46-2(b).]

The requirements in the rule "are designed to 'focus . . . attention on the areas of actual dispute' and 'facilitate the court's review' of the motion." Claypotch v. Heller, 360 N.J. Super. 472, 488 (App. Div. 2003) (quoting Pressler, Current N.J. Court Rules, comment on R. 4:46-2 (2003)).

Here, defendant filed a statement which contained six material facts. Plaintiffs did not file a response to the statement in the form mandated by the rule. The judge stated on the record that all of the facts were deemed admitted because there "was no response to them by the plaintiff[s]." A review of the record indicates that there was no genuine dispute as to the following facts: this action arose out of an incident that occurred on December 3, 2000, when Holland fell from the building; defendant is the owner of the premises; Holland was an unmarried man whose sole source of income was a social security monthly payment and his annual income was about $7,000; Holland was pronounced dead at the scene and there is no evidence that his death was not instantaneous; and there are no eyewitnesses who can state how plaintiff fell from the building.

However, contrary to the judge's statement, plaintiffs did respond to the sixth of defendant's statements of material fact, specifically the assertion that, "There have been no facts set forth to support any theory of an 'accident' which support plaintiff[s]' theory of an unintended fall from any allegedly defective window in the building." Nevertheless, the judge gave careful consideration to all of the evidence presented by plaintiffs in ruling on the motion.

We also reject plaintiffs' assertion that the judge erred in granting defendant's motion for summary judgment. Summary judgment is warranted only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). In considering a motion for summary judgment, the judge must consider the competent evidential materials in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of" R. 4:46-2. Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When reviewing an order granting summary judgment, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We are convinced from our own review of the record that plaintiffs did not present sufficient evidence to raise a genuine issue of material fact as to whether defendant's negligence was a proximate cause of Holland's fall. Even if we assume that defendant was negligent in failing to maintain one of the locks on the window on the 14th floor, there is insufficient evidence to allow a reasonable jury to find that the broken lock was a proximate cause of the accident.

Indeed, as the judge recognized, Natoli's opinion is premised on the assumption that Holland was seated on the ledge and fell when he leaned up against the window, inadvertently causing it to pivot open. Natoli's report makes clear that this scenario is based on Kenneth's statement that Holland "was seated on the window ledge smoking a cigarette" and, when he leaned back, "the window rotated into the open position," which caused Holland to fall. However, Kenneth was not present when Holland fell from the building and he could not have observed the incident. Consequently, Natoli's opinion as to the cause of the accident rests on pure speculation.

The other evidence cited by Natoli also provides no support for his opinion as to causation. Natoli notes that Ware observed a man fall from the building but Ware did not see and could not describe the circumstances under which Holland fell. In addition, Natoli notes that Ware said that at times he has seen persons in the building smoking cigarettes in the hallway areas near the windows facing out on South Orange Avenue. However, Ware's statement is insufficient to establish that Holland fell because he was sitting on the ledge smoking a cigarette, when he inadvertently leaned up against the window with the broken lock.

Natoli also cites the statements in the police report by certain unnamed tenants of the building, who asserted that it was not uncommon for occupants of the building to smoke cigarettes near the windows in the hallway, while sitting on the window sills. These statements from unnamed persons are not competent evidence. In addition, there is no sworn statement from any person in the record to the effect that Holland would at times sit on the window sill near the window on the 14th floor.

We agree with plaintiffs that Holland's fall was tragic. However, no one witnessed the incident and the circumstantial evidence proffered by plaintiffs does not provide a factual basis for a jury to conclude that any negligence by defendant was a proximate cause of the accident. We are therefore convinced that the judge correctly granted summary judgment in favor of defendant on this basis. In view of our decision, we need not address the judge's alternative basis for dismissing the wrongful death action, specifically her determination that Holland's children did not present sufficient evidence to establish that they were financially dependent upon their father.

III.

Plaintiffs also argue that the judge erred in denying their motion to extend discovery so that they could depose Officers Maldonado and Chirico. Again, we disagree.

The record shows that, when the motion to extend discovery was made, the case had already been scheduled for trial. In these circumstances, an extension of time for discovery may only be granted on a showing of exceptional circumstances. R. 4:24-1(c). Plaintiffs did not make the required showing in this case. As we have pointed out, the time for discovery had been repeatedly extended. In addition, an order was entered on February 2, 2004, requiring the Essex County Prosecutor to produce its investigative materials, including reports of its investigations. Plaintiffs had sufficient time to depose Maldonado and Chirico.

Moreover, the police report set forth the relevant facts concerning the incident. The officers did not personally witness the event and there was no indication that they could provide additional relevant information that would assist plaintiffs prove their case. In our view, plaintiffs did not establish exceptional circumstances for a further extension of time for discovery. Ibid.

 
Affirmed.

(continued)

(continued)

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A-5791-04T5

July 17, 2006