SANDRA FELDMAN v. THE MAPLE GROUP, LLC.



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3429-06T23429-06T2

SANDRA FELDMAN AND MELVIN FELDMAN,

Plaintiffs-Appellants,

v.

THE MAPLE GROUP, LLC, CITY OF SUMMIT, and MARSELLIS WARNER CORP.,

Defendants-Respondents,

and

BERLITZ SCHOOL, SCAFAR CONTRACTING CORP., ALPINE LANDSCAPING, APPLIED LANDSCAPING, MICELI KULIK WILLIAMS & ASSOCIATES, and CHRISTOPHER P. STATILE, P.A.,

Defendants.

__________________________________



Argued: February 11, 2008 - Remanded:

Decided:

Before Judges Collester, Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-319-05.

Daniel B. Needle argued the cause for appel lants (Kohn, Needle & Silverman, attorneys; Mr. Needle, on the brief).

Karen Kuebler argued the cause for respon dent The Maple Group, L.L.C. (Law Offices of Linda S. Baumann, attorneys; Ms. Kuebler, of counsel and on the brief).

Jason Liam Schmolze argued the cause for respondent Marsellis Warner Corp. (Taylor, Colicchio & Silverman, attorneys; Christo pher J. Hoare and Mr. Schmolze, on the brief).

Richard J. Guss argued the cause for respon dent City of Summit (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys; Mr. Guss, of counsel and on the brief).

PER CURIAM

Plaintiffs Sandra and Melvin Feldman appeal from the grant of several summary judgments in favor of defendants The Maple Group, L.L.C. (Maple), City of Summit (Summit), and Marsellis Warner Corp. (Marsellis). This is a personal injury action seek ing damages for injuries Sandra Feldman suffered on April 10, 2003, when she tripped and fell over a raised planter in the public sidewalk in front of property owned by Maple in Summit that was partially constructed by Marsellis until it was removed from the job by Summit and replaced by Scafar.

Because this is a summary-judgment appeal, we assume that the Feldmans' assertions of fact are true and grant all the favorable inferences to them. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Our recitation of the facts is drawn solely from the admissible evidence in the plaintiffs' appendix, see Cipala v. Lincoln Technical Institute, 179 N.J. 45, 52 (2004); Gross v. Borough of Neptune City, 378 N.J. Super. 155, 159 (App. Div. 2005), and any facts admitted by the parties.

I.

On April 10, 2003, Sandra Feldman, who was then sixty-eight years old, drove from her home in Millington to Summit, parked her car at a temple, and walked to the train station to catch a bus to Newark. She had been sitting as a juror in a federal criminal trial for about two weeks. At the end of the court day, she took the bus back to Summit and got off at the train station. On her way back to the temple parking lot, Sandra crossed Maple Street in front of 47 Maple Street, which is owned by Maple and occu pied by the Berlitz School. She stepped up onto the curb, took a few steps on the sidewalk heading toward Maple's building, and then turned to her right to walk down the sidewalk. As she did so, her right foot caught the corner of the planter box that was closest to the school and she tripped and fell, breaking her right wrist.

The planter box had been partially constructed in the side walk in front of 47 Maple Street as part of a beautification project adopted by Summit on April 4, 2000, when it designated certain downtown properties as part of a Streetscape Improvement District (SID). Maple's property was included in the SID. The purpose of the SID was to promote economic growth and employment within the business district and, in particular, within the SID; enhance the local business climate; and allow Summit to apply for and accept funds from the State of New Jersey.

Summit's architects, Miceli Associates, developed plans for the SID project. Those plans were approved by Summit's town engineer, Statile, and requests for bids issued. In June 2000, Summit awarded the contract to Marsellis as the general contractor for the downtown improvement project, including paving the streets, putting in new sidewalks, and constructing between 150 and 200 planters in the new sidewalks. Philip Amsterdam, the president of Marsellis, testified at deposition that its contract was a unit-price, rather than a lump-sum, contract. Marsellis did all of the work under the contract except the concrete work for side walks, street curbs, and pavers in the street, which was done by J.C. Concrete, and the landscaping, which was done by Applied.

Each rectangular planter was to contain a shade tree. The planters abutted the street curb and intruded into the sidewalk a distance of five feet six inches. Each planter was seven feet long. In the spaces between planters, the sidewalk stretched from the street curb to the buildings. Each planter was to be dug to a depth at least sufficient to accommodate the shade tree's root ball. Inside the external dimensions, Marsellis was to install six-by-twelve-inch precast concrete planter curbs on top of footings installed below the sidewalk. The planter curbs were to project four inches above the level of the sidewalk. The top two outside inches of the planter curbs were to be bev eled at a forty-five-degree angle. Inside the planter curbs, Marsellis was to install galvanized-steel wire wickets, which were to pro ject eight inches above the top of the planter curbs, thus cre ating a visual height of twelve inches overall. The wickets were to curve outward at the top to overhang the planter curb. The top of the soil was to be level with the sidewalk, not the top of the planter curbs. Each planter was laid out by a licensed surveyor.

Marsellis removed and replaced the existing sidewalk and con structed the planter curbs, with modifications as directed by Summit. Marsellis then had a five-foot prototype of the wickets manufactured for Summit's review and approval. Summit was not happy with the prototype and deleted the wickets from the scope of work under the Marsellis contract. Summit then instructed Marsellis to fill the planters with soil to the level of the sidewalk and finish the items on Summit's punch list. Marsellis objected that it would be a safety hazard to only fill the planters to the level of the sidewalk and so Summit instructed Marsellis to fill the planters to the top of the planter curbs and plant ivy. Marsellis complied and was off the job around the middle of 2002. Statile redesigned the wick ets, put the wicket contract out for bids, and Scafar was awarded the contract for the wickets on July 23, 2002. However, the wickets were not actually installed until May 2003, a month after Sandra Feldman's fall.

Sandra Feldman testified that, after she fell, she did not see any thing planted in the planter, not trees or ivy. She testified that the planter box was not visible because there was no tree in the box and there was no metalwork around the edges of the box. She also testified that the sidewalk narrowed appreciably where the planter box was located, making it difficult for more than two people to walk abreast. There were no warnings or safety barriers around the planter on the day of her accident.

The Feldmans' expert, Theodore Moss, P.E., inspected the planter in front of 47 Maple Street on December 22, 2005. He opined that the edge of the planter curb, without the wickets installed and the tree planted, is

problematic since this concrete curbing is relatively low and is constructed of con crete of the same coloration and texture as the surrounding concrete sidewalk. This makes it difficult for pedestrians to dis cern the planter edge curbing, thus present ing a trip hazard for pedestrians who may catch their feet on the corner or edge of the planter as they walk past.

He opined that the planter "presented a very serious pedestrian trip hazard at that time . . . directly associated with con struction activities" rather than a design defect. Relying on various construction and sidewalk safety standards, including ones applicable to "owners," Moss opined that the "failure to alert and protect pedestrians during the construction process created a highly unreasonable pedestrian danger and was the direct cause of the accident and injury suffered by [Sandra] Feldman." He concluded:

In my opinion, the area where [Sandra] Feldman was injured, including the unat tended and not barricaded or highlighted raised planter curbing that obstructed safe use of the sidewalk and caused her to trip and fall, was improperly and defectively constructed/installed by the construction con tractor and defectively maintained by the property owner. At the very least, either the construction contractor or the City of Summit should have placed barricades, cones, etc., at the partially constructed planter unit during the construction process. A reasonable inspection by either of these entities would have revealed the potential hazard to pedestrians using the area and reasonable construction practice required that the construction operation be properly barricaded for public safety during the con struction process. This is especially true in view of the location of this sidewalk area in a downtown business and commercial district near a train station and bus stop, where heavy pedestrian traffic was to be expected. The area condition was clearly and palpably violative of normal and accepted safe construction and maintenance practice and of the various codes and stan dards discussed herein. Under the circum stances, this was an unreasonably hazardous area, and an accident/injury of the type that occurred was entirely predictable. This accident was the result of dangers inherent in this installation and construc tion process; unnecessary dangers which were readily avoidable by normal and accepted construction and maintenance practice.

II.

Maple filed a summary-judgment motion on February 8, 2006, seeking dismissal of the Feldmans' complaint, amended complaint, and all cross-claims on the ground that Maple was not liable as a matter of law. Sum mary judgment was granted on March 31, 2006. Marsellis also sought a summary judgment dismissing all claims and cross-claims and its motion was granted on July 21, 2006. Summit cross-moved on May 26, 2006, for indemnification from Marsellis and for a summary judgment dismissing the Feldmans' claims against it on the grounds that it had not acted in a palpably unreasonable manner, the sidewalk was not in a dangerous condition, and it enjoyed design immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Summit's motion was also granted on July 21, 2006. This appeal followed and we remanded the mat ter to the judge for written findings of fact and conclusions of law in accordance with Rule 1:7-4, which the judge timely supplied to us.

In her written opinion, after finding the undisputed facts, the judge correctly determined that Maple was a commercial-property owner that owed a duty to the public to maintain public sidewalks abutting its property in reasonably good condition and had a duty to pedestrians to maintain the abutting sidewalk in good repair, citing Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981). After discussing sidewalk cases after Stewart, the judge addressed the Feldmans' argument that Maple should have put a cone in place near the planter after Marsellis left the job and kept it there until the planter was fully constructed. The judge expressed concern about imposing such a duty because, she opined, it would mean that every commercial-property owner in downtown Summit would have had the same obligation as none of the planters were completed by July 2002.

The judge concluded "that the planter, which was designed to be filled with soil and flowers and a tree and surrounded by a wicket fence inside the concrete edging, was designed to be ornamental and not part of the means of ingress and egress to [Maple's] commercial enterprise . . . by pedestrians on Maple Street." The judge stated that "these planters were not intended to be walked upon." She found that imposing a duty on Maple to notify Summit that construction was not complete was pointless because it was Summit that terminated Marsellis's con tract and hired Scafar and it knew that construction was not complete.

The judge then considered whether Maple was under a duty to warn pedestrians of the tripping hazard in some fashion, as by placing a cone or a barrier by the planter. In doing so, she examined "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution," citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). The judge observed that Maple and all the other downtown commercial-property owners were not in a position to complete construction of the planters, a process in the control of Summit and Scafar. She found that the attendant risk, failing to detect the trip ping hazard, was a district-wide risk requiring a district-wide solution by Summit or Scafar, "not a piecemeal discretionary choice by each individual property owner." The judge held:

From a public[-]policy perspective, plac ing the duty on the party who is in con trol of the timing of the completion of the project makes more sense than shifting the burden to the property owners to come up with makeshift solutions of their own until the contractor completes the job it was hired to do.

For these reasons, this [c]ourt finds [Maple's] duty to maintain the premises to protect invite[e]s from a dangerous condi tion did not extend to being required to place cones or other warning devices around the planters in its sidewalk between the installation of the edging and installation of the wickets. Therefore, this [c]ourt enters summary judgment in favor of . . . Maple . . . and against the [Feldmans].

The judge then discussed the summary judgment sought by Marsellis, considering the existence of a duty owed by it to the Feldmans. She determined

that when the contract to install the wick ets was taken away from defendant Marsellis, it no longer had a duty to complete the con struction of the wickets, and therefore it cannot be liable to the plaintiff for failing to have done so.

Therefore, summary judgment is granted in favor of the defendant Marsellis . . . and against the [Feldmans].

Next, the judge addressed the cross-motion of Summit. She denied Summit's cross-motion for indemnification by Marsellis and then considered the liability of Summit under the TCA. Summit contended that the Feldmans failed to establish that the planter in its incomplete condition was a dangerous condition of public property as defined by N.J.S.A. 59:4-2. The judge acknowledged that the question as to whether public property was in a dangerous condi tion was generally a jury question, sub ject to judicial determination of whether a reasonable fact finder could conclude that the property was in such condition. Noting that the planter was not intended to be a means of egress and ingress, "[t]here was no defect in the sidewalk itself . . ., nothing protruded from the planter into the sidewalk[, and t]he edging was intended to form the barrier between the sidewalk and planter," the judge found that "the incomplete planter was not a physical defect in the public property." She also observed that:

the record does not establish that the bar rier of the partially completed planter posed a risk to any other persons walking on the sidewalk in front of 47 Maple Street or elsewhere in the [SID] between the comple tion of the edging around the planters and the installation of the wickets.

The judge also considered whether the conduct of Summit was palpably unreasonable under N.J.S.A. 59:4-2. She again acknowl edged that this was generally a jury question but noted that it was subject to judicial determination as a matter of law. She also noted that the record was bereft of any evidence of com plaints about the planters prior to Sandra Feldman's fall. The judge concluded:

While reasonable minds could differ as to whether [Summit] acted negligently or not, the statute requires the [Feldmans] to prove much more than ordinary negligence. Given the determination that the planters are not part of the means of ingress and egress on the sidewalk, and no evidence of prior complaints that the edging presented a problem to pedestrians walking on the side walk, and the size of the project within the [SID], this [c]ourt finds that reasonable jurors could not find that [Summit's] role in the delay in the installation of the wickets was patently unacceptable and that no prudent person would approve of its inaction.

Thus, the judge granted the cross-motion of Summit for dismissal of the Feldmans' claims. This appeal followed.

In reviewing a ruling on a summary judgment motion, we apply the same standard as that governing the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is designed to provide a prompt, business like and inexpensive method of resolving cases. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Summary judgment is only appropriate if there is no genuine issue as to any material fact in the record:

The judgment or order sought shall be ren dered forthwith if the pleadings, deposi tions, answers to interrogatories and admis sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.

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

The Brill Court outlined the standard for deciding a summary judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that pre cludes summary judgment requires the motion judge to consider whether the competent evi dential 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 dis puted issue in favor of the non-moving party.

[Brill, supra, 142 N.J. at 540.]

The judge must not decide issues of fact in considering a sum mary judgment motion. Ibid.; Judson, supra, 17 N.J. at 75. Therefore, the motion must be considered on the basis that the nonmoving parties' assertions of fact are true and "grant all the favorable inferences to the non-movant." Brill, supra, 142 N.J. at 536. The determination is whether "the evidence 'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insuffi cient to constitute a 'genuine' issue of material fact for pur poses of Rule 4:46-2." Id. at 540 (citations omitted).

III.

With respect to the summary judgment dismissing all claims against Maple, the Feldmans argue that Maple had a duty to warn pedestrians of the tripping hazard no matter who created the danger, relying on Monaco v. Hartz Mountain Corp., 178 N.J. 401 (2004); Mirza v. Filmore Corp., 92 N.J. 390 (1983); and Bedell v. Saint Joseph's Carpenter Society, 367 N.J. Super. 515 (App. Div. 2004). As a consequence, they contend that the issue of Maple's negligence had to be resolved by a jury.

Maple, on the other hand, contends that Summit owns the side walk and that Moss did not opine that Maple was negligent because his references to "the owner" refer only to Summit. It argues that May v. Atlantic City Hilton, 128 F. Supp.2d 195 (D.N.J. 2000), controls the issue of its negligence as a matter of law and that Monaco and Bedell are clearly distinguishable from the facts before us.

The duty of a commercial entity to the public traversing a sidewalk in front of the commercial establishment has been thor oughly developed in Stewart and its progeny. The Stewart Court determined that a duty to repair defective sidewalks should be imposed on abutting commercial-property owners. Stewart, supra, 87 N.J. at 157. In doing so, the Supreme Court observed, "Logic and common sense . . . sup port the imposition of this duty, inasmuch as owners of abutting property are in an ideal position to inspect sidewalks and to take prompt action to cure defects." Id. at 158 (citation omit ted). Two years later, the Court extended the duty of care respecting defects in abutting side walks to include a duty to use reasonable care to remove snow and ice. Mirza, supra, 92 N.J. at 395-96.

In Brown v. St. Venantius School, 111 N.J. 325, 332-33 (1988), the Court resolved a conflict in our decisions and ruled that a religious school charging tuition to its students, employing teachers and other personnel, purchasing supplies and teaching materials, and maintaining a physical plant was a com mercial landowner subject to the duty to remove snow and ice. In Bligin v. Jersey City Housing Authority, 131 N.J. 124, 136-37 (1993), the Supreme Court imposed the duty to remove snow and ice on public housing authorities, albeit subject to the proof requirements of the TCA.

In Hopkins, which is not a sidewalk liability case, the Supreme Court was required to decide whether a realtor had a duty to warn business invitees to an open-house tour of danger ous conditions in the home. Hopkins, supra, 132 N.J. at 431. The accident occurred inside the home, id. at 432, and the issue presented was novel. The Court observed that traditional common-law prin ciples of landowner liability did "not necessarily provide reli able guid ance in determining the existence and scope of the duty of care that should be ascribed to a broker." Id. at 438. It concluded,

The inquiry should be not what common law clas sification or amalgam of classifica tions most closely characterizes the rela tionship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in prevent ing foreseeable harm to its open-house cus tomers is fair and just. That approach is itself rooted in the philosophy of the common law.

[Ibid.]

Having focused the inquiry, the Court established the fac tors to be considered in "[d]etermining the scope of tort liability." Id. at 439. The Court held:

Whether a person owes a duty of reason able care toward another 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. That inquiry involves identifying, weighing, and balancing several factors the relationship of the parties, the nature of the attendant risk, the opportu nity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

[Ibid. (citations omitted).]

Returning to sidewalk liability cases, in Gaskill v. Active Environmental Technologies, Inc., we considered whether a commercial-property owner had a duty of care with respect to a metal grate around a tree planted toward the outer edge of the sidewalk. 360 N.J. Super. 530, 532 (App. Div. 2003). As here, the property on High Street was in a commercial district and the sidewalks extended from the buildings to the curbs. Id. at 533. The trees along High Street had been planted in 1991 by Mt. Holly, which installed metal grates in the sidewalk around the base of the trees. Ibid. The plaintiff tripped and fell be cause the metal grate in front of defendant's property had been pushed up above the level of the sidewalk by a tree root. Ibid.

We discussed the cases analyzing when curbs are considered part of a commercial sidewalk such that the property owner has a duty of care respecting the curb as well as the sidewalk. Id. at 534-35. We noted that in Levin v. DeVoe, 221 N.J. Super. 61, 64 (App. Div. 1987),

We concluded that a curb separated from the sidewalk by a grass strip was not an inte gral part of the sidewalk but rather was a feature of the road and was, therefore, "a significantly less immediate means of pedes trian ingress and egress to the abutting property than is a sidewalk."

[Gaskill, supra, 360 N.J. Super. at 535 (quoting Levin, supra, 221 N.J. Super. at 65).]

We also noted that in May Judge Brotman concluded that a handi cap ramp occupying the gutter area between the curb and street was part of the sidewalk because "'the ramp, like a sidewalk, is used by pedestrians to move from the street to the hotel and has nothing to do with roadway functions such as channeling cars and water.'" Ibid. (quoting May, supra, 128 F. Supp. 2d at 200). We further considered the dicta of Judge Skillman in Thomas v. Second Baptist Church of Long Branch, 337 N.J. Super. 173, 176 (App. Div. 2001), suggesting that, but for charitable immunity, the church would not have been immunized from liability for plaintiff's injuries as a result of tripping and falling on a raised metal grate in the sidewalk. Gaskill, supra, 360 N.J. Super. at 535-36.

Finally, we considered Gaskill's contention that "the tree grate is designed to be part of the pedestrian walkway, as it is supposed to be level with the sidewalk and allows for drainage like any grate." Id. at 536. We concluded that submission to a jury was required because "the evidence presents a debatable question as to whether the subject tree grate contained within the outbounds [sic] of the sidewalk is structurally an integral part of the sidewalk and is used as a pedestrian walkway or means of pedestrian ingress and egress to the abutting property." Ibid.

The plaintiff in Monaco was injured when "a gust of wind dislodged a nearby municipal parking sign . . . installed on Hartz's sidewalk." Monaco, supra, 178 N.J. at 404. Monaco's expert, Theodore Moss, reported that the sign in question had been dam aged and dislodged by vehicles, the sign "'wiggl[ed]' very noticeably in the wind," and truck drivers had seen the sign in that condition for at least a month before Monaco's acci dent. Id. at 405-06. On the date of the accident, the sign became totally dislodged and, blown by the wind, struck Monaco on the head, knocking him against the doors of Hartz's building. Id. at 409. A wit ness saw the sign being pulled out of the cement by the wind and becoming airborne. Ibid. That same wit ness testified that he had seen cars and trucks hit the sign on multiple occasions over a three-year period. Ibid.

At the close of Monaco's case, the judge granted a directed verdict in favor of Hartz, reasoning that it had no "legal duty with respect to the traffic sign" because it had been installed in the sidewalk by Newark and Hartz never assumed responsibility to inspect the sign. Id. at 411. We affirmed that determina tion, concluding that Hartz "had no legal duty with respect to a traffic sign owned and installed by the municipality." Ibid.

The Supreme Court disagreed and concluded that a commercial "landowner owes a duty to its invitees to maintain its land in a safe condition, to inspect, and to warn of hidden defects [in the sidewalk abut ting its property] whether within its power to correct or not . . . ." Id. at 404. The Court approvingly cited three of our decisions and a Law Division decision impos ing a duty to warn of dangerous conditions that were not located on the land owner's commercial property but which invitees might encounter. Id. at 415 (citing Warrington v. Bird, 204 N.J. Super. 611 (App. Div.), certif. denied, 103 N.J. 473 (1986); Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 16 (App. Div. 2001); Mulraney v. Auletto's Cater ing, 293 N.J. Super. 315 (App. Div.), certif. denied, 147 N.J. 263 (1996); Jackson v. K-Mart Corp., 182 N.J. Super. 645 (Law Div. 1981)). The Court agreed that "our tradi tional jurisprudence clearly recognizes that neither ownership nor con trol is the sole determinant of commercial landlord liability when obvious danger to an invitee is implicated." Id. at 417.

The Court observed that the principles established in Hopkins "resonate[d]" in Monaco. Monaco, supra, 178 N.J. at 417. The Court found that it was "inconsequential" whether "the classic commer cial landowner liabil ity standard . . . or the more fluid Hopkins rule" was applied because the result would be the same. Id. at 418. It concluded:

What is important in all of this is that Monaco is not attempting to hold Hartz responsible for something over which it had no control, but only for negligently failing to take such measures as were within its power and duty to protect its invitees from reasonably foreseeable danger. Given the nature of the cause of action, both lower courts were mistaken in concluding that because Hartz did not own the sign, it had no duty with respect to it. On the con trary, Hartz owed a legal duty to Monaco and it was for the jury to determine whether that duty was satisfied.

[Id. at 419.]

It is not necessary, under the law governing liability for defects in sidewalks, that Moss opine on the liability of Maple specifically because that is an issue for the jury. It was suf ficient that he opined that the planter created a tripping haz ard because it was not noticeable. The planter curb was the same color concrete as the sidewalk, which surrounded it on three sides; was only two inches high on the edge abutting the sidewalk; and did not have any wickets or warnings to alert pedestrians to its presence.

After Monaco was decided, we addressed the issue of whether a commercial-property owner had a duty of care with respect to a tripping hazard in a grassy strip between the street curb and the sidewalk abutting his establishment in Bedell. There, plaintiff crossed Berkley Street in Camden on his newspa per delivery route. Bedell, supra, 367 N.J. Super. at 518. He stepped onto the curb, walked along it for a few steps, and turned left to cross the grassy strip separating the curb from the sidewalk. Ibid. As he did so, he tripped on a tree root and fell. Ibid. The grassy strip ran the entire length of the block without gaps for driveways or otherwise. Ibid. The tree itself had been cut down. Id. at 519. The trial court dismissed Bedell's claim, reasoning that the defendant had no duty to maintain the strip of land between the sidewalk and curb, which was not intended for pedestrian use. Ibid.

We summarized prior case law as holding that "sidewalks remain the responsibility of the adjoining commercial landowner and curbs not structurally an integral part thereof generally fall outside the scope of any legal duty . . . ." Id. at 520. We noted that the specific issue before us was novel, id. at 520-21, but considered the issue in light of the Monaco Court's ruling that Hartz owed a legal duty to Monaco and "it was for the jury to determine whether that duty was satisfied." Id. at 523 (citing Monaco, supra, 178 N.J. at 418). We continued,

[T]he Court noted that the standard for imposition of a duty on commercial landown ers has evolved from the common law method ology of premises liability, Mulraney[, supra], 293 N.J. Super. [at] 320-21 . . ., to a more flexible approach based in "an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." [Monaco], supra, 178 N.J. at 418 (quoting Hopkins[, supra,] 132 N.J. [at] 439 . . .). That inquiry, the Court explained, involves "identifying, weighing and balancing several factors [in cluding] the relationship of the parties, the nature of the attendant risk, the oppor tunity and ability to exercise care, and the public interest in the proposed solution." Ibid.

In determining the outer limits of a com mercial landowner's liability, Stewart and its progeny counsel against too rigid an application of absolute rules, which appears to have been the approach taken below. Indeed, the trial court, in dismissing plaintiff's complaint, stated in con clus[o]ry fashion that "the grassy strip [was] not meant for pedestrian use" and that defendant did "not have to maintain an area [that was] not meant for people to walk on." Such a cramped view of the governing princi ples, however, cannot be reconciled with either the evolving standards for imposing a legal duty, or the facts of record.

[Bedell, supra, 367 N.J. Super. at 523.]

After discussing two sister-state cases, we determined the issue before us as follows:

Here, taking into consideration all the surrounding circumstances, it cannot be said, as a matter of law that no legal duty attaches in this instance. Nothing in the nature of this grassy patch of land would per se absolve defendant from liability for injuries received thereon. Indeed, as the court noted in [Monaco], supra, "neither ownership nor control is the sole determi nant of commercial landowner liability." 178 N.J. at 404.

Rather, the imposition of a duty of care in this case is consistent not only with the character of the unpaved plot as part of the sidewalk, but with considera tions of fairness and public policy as well. [Monaco], supra, 178 N.J. at 418; [Hopkins], supra, 132 N.J. at 439. The right of the public to safe and unimpeded passage along the sidewalk, Stewart, supra, 87 N.J. at 152, must, of necessity, include the right to safely reach the protection of the sidewalk from an unimproved strip of land immediately adjacent to it. Considered more closely connected with the sidewalk than the roadway, the unpaved plot of land, it is reasonably anticipated, will be traversed by members of the public. Having been provided the substantial benefit of easy access to its property, it is only fair that defendant be burdened with the duty to maintain the grassy strip in a reasonably safe condition so as not to present an unreasonable risk of harm.

[Id. at 525-26.]

The judge here misperceived the essential inquiry when she found that the planter was not intended for pedestrian traffic and concluded that Maple had no duty to warn pedestrians of any dan ger. The issue is whether, in light of all the circum stances, Maple had a duty to warn pedestrians about the presence of the partially constructed planter in the surrounding sidewalk where the low-profile corners of the planter were not noticeable because they were the same color as the sidewalk, which surrounded it on three sides; the planter was not planted with a tree or other vegetation; and the planter had no protec tive wickets installed to prevent pedestrians from walking across it or trip ping over it. The planter intruded into the ten-foot-wide side walk in front of Maple's property by over five feet and, if the planter curb was not noticed, would cause someone walking on the sidewalk to trip and fall. Sandra Feldman crossed the street, stepped onto the curb, walked onto the sidewalk, and turned to the right to proceed along the sidewalk when she encountered the low-profile corner of the partially constructed planter.

"Owners of abutting property are in an ideal position to inspect sidewalks . . . ." Stewart, supra, 87 N.J. at 518 (emphasis added). They are under a duty to warn of hidden defects regardless of whether they have the power to correct them or not. Monaco, supra, 178 N.J. at 404. It was for a jury to determine whether that duty was discharged here where Maple knew or should have known that no work had been done on the planters for many, many months and Summit had taken to action to either complete construction or place a suitable warning to pedestrians of the low-profile hazard in their path of travel. Little more of Maple was required than to drive a sufficiently tall stake into the four corners of the planter and attach warning tape from stake to stake or demand that Summit do so.

The judge also erred in concluding under the Hopkins analy sis that imposing a duty on Maple to warn pedestrians of the tripping hazard was not an appropriate public-policy solution because it would mean that every commercial-property owner in downtown Summit was under the same duty. This led her to con clude that a district-wide solu tion by Summit or Scafar was required and that Maple had no duty to warn pedestrians of the tripping hazard. We disagree.

As the Hopkins Court explained, when determining the existence of a duty of care, "[t]he analysis is both very fact-specific and principled." 132 N.J. at 439. We must identify, weigh, and balance "several factors the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid.

Maple as a commercial establishment had a relationship with the public (and Sandra Feldman in particular) as potential invitees and licensees for Maple's tenants. It depends for its business of renting commercial space on the ability of the public to access the businesses of Maple's tenants by traversing the sidewalk. Indeed, one of the purposes of the SID was to promote economic growth and employment in the SID, a goal that would directly benefit commercial-property owners in the SID, including Maple.

The incomplete planter, which blended in with the sidewalk, presented an attendant risk of injury to the public traversing the sidewalk, including Sandra Feldman. This factor is entitled to substantial weight, particularly because the remedy, adequate warning of the risk, was so simple.

Maple had both opportunity and ability to exercise care to give warning to pedestrians of the obstruction in the sidewalk at very little expense to it four stakes and some warning tape. Of course, the other parties had the same ability, but the opportunity of Marsellis and Scafar was more limited as they were not present on a daily basis and Maple, which was colocated with the planter, could clearly see that neither of the contractors nor Summit was acting to protect pedestrians.

Finally, the public clearly had an interest in being warned about obstructions in the middle of the sidewalk so that pedestrians could avoid the risk of tripping on the building-side corners of the planters.

In balancing these factors, we are satisfied that the inter est of the public in safe passage along public sidewalks requires the imposition of a duty on Maple to give warning of the obstruction in the sidewalk caused by the partially con structed planter. We are not persuaded that the logical exten sion of this duty to other property owners in the SID militates against its imposition when the duty involves only a warning at very little expense to each commercial-property owner. We do not doubt that a SID-wide solution would have been preferable, but it did not happen and, thus, imposing a duty to warn on the abutting commercial-property owner "satisfies an abiding sense of basic fairness under all of the circumstances." Hopkins, supra, 132 N.J. at 439.

IV.

The judge granted summary judgment to Marsellis because Sum mit terminated the portion of the contract with Marsellis calling for the installation of the wickets. As a result, she concluded that Marsellis had no duty to complete the construc tion of the planters. This is obviously true, but the issue is not whether Marsellis was required by contract to complete the planters, but rather, whether it was under a duty to warn pedestrians of the tripping hazard when the wickets were deleted from its contract with Summit.

It is fairly obvious that Amsterdam recognized that leaving the planters in an incomplete state of construction created a hazard to pedestrians because he protested Summit's instructions to stop work. He urged that the excavated planters should be filled with soil. Thus, Marsellis was aware of some risk to pedestrians and the issue becomes whether it was under a duty to warn the public of the trip ping hazard created by the partially constructed planters before it left the project.

The only case cited by either the Feldmans or Marsellis respecting a duty of care at a construction site is Carvalho v. Toll Bros. & Developers, 143 N.J. 565 (1996). The Feldmans urge that it is determinative and Marsellis urges that it is distinguishable because many months elapsed after it left the site before Sandra Feldman tripped on the corner of the planter and fell.

In Carvalho, a workman died when the unstable walls of a deep trench in which he was working collapsed on him. Id. at 569. The issue presented was whether the engineer, which had no contractual obligation to supervise safety procedures, and its inspector were under a duty to exercise reasonable care for the safety of workers on site when the engineer and inspector were aware that the site created a risk of serious injury to workers. Ibid. The engineer's inspector was present at the site on the date of the accident and was watching the decedent working in the trench before it collapsed. Id. at 572.

The Court summarized the factors to be considered by a court when it was required to determine the existence of a duty of care. Id. at 572-73. It pointed out that the foreseeability of harm is a significant, even crucial, factor in such a deter mination. Ibid. It stated that "foreseeability of harm and considerations of fairness and policy [under Hopkins] are connected." Id. at 573.

The Court found that it was foreseeable that workers in the trench were at risk of the trench collapsing and injuring them. Id. at 574. The Court also found that the relationship of the parties was contractual and the engineer's contractual duties implicated safety concerns. Id. at 575. Further, the engineer and its inspector had the authority to stop work if safety con ditions could affect work progress and could take or require corrective measures to address those safety concerns. Id. at 576. Additionally, the Court observed, "The existence of actual knowledge of an unsafe condition can be extremely important in considering the fairness in imposing a duty of care." Id. at 576-77. These considerations led the Court to hold that both the engi neer and its inspector owed a duty of care to the workers in the trench. Id. at 577-78.

We considered the tort duty of a contractor in Raimo v. Fischer, 372 N.J. Super. 448 (App. Div. 2004). Defendants Robert and Darleen Fischer hired defendant Parker Construction, Inc. (Parker), to construct a single-family house on property they owned in Surf City. Id. at 451. Parker in turn hired various subcon tractors, including defendants Oceanside Builders and Remodellers, Inc. (Oceanside), and Nicholas Englebert. Ibid. On the day of the accident, Raimo and his brother went to the site to meet with Richard Partington, an Oceanside employee. Ibid. They received no answer after calling out to him and, when they heard hammering above them, they began to ascend the stairs, again calling out to him. Ibid. Someone responded that Partington was not there and Raimo and his brother then turned around and began to descend the stairs, but the staircase fell away from the house and Raimo was seriously injured. Ibid. Although the staircase had originally been secured to the house, it had been removed by Oceanside to permit some construc tion work and Parker placed it in the garage. On the day of the accident, Englebert arrived at the site, found the staircase in place, and used it seven or eight times before Raimo ascended the staircase, never checking to ascertain that it had been secured in place. Id. at 451-52.

The defendants moved for summary judgment, which was granted on premises-liability principles. Id. at 452. We reversed, concluding that general negligence principles governed the issue of a duty of care. We held:

The liability of a contractor for negli gence in the maintenance of a construc tion site is not subject to the special rules of liability applicable to possessors of land; instead, a contractor has a duty to maintain the premises on which it performs work in a reasonably safe condition for per sons who the contractor may reasonably expect to come onto the site. The discharge of this duty includes the performance of reasonable inspections to ensure that the construction site is in a safe condition.

[Id. at 453 (citations omitted).]

We further noted, "The only type of tort cases in which our Supreme Court has continued to apply common law principles of premises liability are those involving claims against the owners of property used for non-commercial [sic] purposes." Id. at 454. After briefly discussing such cases, we observed: "How ever, in cases involving claims against the operators of commer cial enterprises, our courts have applied general negligence principles in light of the factors set forth in Hopkins and applied in Carvalho and Alloway." Id. at 455. We then held "that a con tractor's duty of reasonable care under general neg ligence principles . . . is not lim ited to cases involving claims by subcontractors' employees but instead extends to any persons a contractor may reasonably expect to come onto a con struction site, regardless of their classifica tion under the law of premises liability." Id. at 456. We con cluded that "Englebert had a duty of reasonable care for the safety of per sons who he could reasonably expect would come to the construc tion site on the Fischers' property, which included ensuring that the temporary staircase he was using to perform his work was properly attached to the house." Id. at 456-57.

While Marsellis was in control of the project, it was under a duty to exercise reasonable care for the safety of pedestrians on the construc tion site. However, we are satisfied that Marsellis was relieved of any further duty to pedestrians once the wickets were removed from its contract, it notified Summit of the tripping hazard, and Summit specifically instructed Marsellis to simply fill the planters to the top of the planter curbs and plant ivy. By that time, Summit was in control of the project and Marsellis was not authorized to take any further measures. As a result, we affirm the summary judgment in Marsellis's favor as no triable jury issue existed.

V.

With respect to the liability of Summit for the injuries sus tained by Sandra Feldman, the judge concluded as a matter of law that the planter was not a dangerous condition because it was not intended to be a means of egress or ingress. She also concluded that the conduct of Summit was not palpably unreason able because the planters were not so intended and because the scope of the pro ject was so large that no reasonable juror could find that the delay in installation of the wickets was patently unreasonable.

Summit, of course, is entitled to the immunities conferred by the TCA, as the judge recognized. It provides generally:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.


b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.

[N.J.S.A. 59:2-1.]

Because the Feldmans allege a defect in public property, the liability of Summit is governed by N.J.S.A. 59:4-2, which provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:


a. a negligent or wrongful act or omis sion of an employee of the public entity within the scope of his employ ment created the dangerous condition; or


b. a public entity had actual or construc tive notice of the dangerous con dition under section 59:4-3 a suffi cient time prior to the injury to have taken measures to protect against the dangerous condition.


Nothing in this section shall be con strued to impose liability upon a public entity for a dangerous condition of its pub lic property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

A "dangerous condition" of public property "means a condi tion of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a); see also Garrison v. Twp. of Middletown, 154 N.J. 282, 286-87 (1998). Generally, the determination of whether public property is in a dangerous condition is a question for the finder of fact. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001) (citations omitted); Roe v. N.J. Transit Rail Operations, 317 N.J. Super. 72, 77-78 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999). We recognize that this fact question is subject to a judicial assessment of whether a reasonable fact finder could conclude from the evidence that the property was in a dangerous condition. Vincitore, supra, 169 N.J. at 124.

In considering the issue of whether the public property was in a dangerous condition, the judge focused only on whether the partially constructed planter was in a dangerous condition and concluded that it was not because it was not intended as a means of ingress or egress. This focus was too narrow and the planter was not being used for such a purpose. As we have previously observed, the issue was whether an unguarded, not readily noticeable, partially constructed planter with a low-profile planter curb and no trees or vegetation, surrounded on three sides by sidewalk, which projected over five feet from the curb into the ten-foot-wide sidewalk, created a dangerous condition in the sidewalk being used by Sandra Feldman as she stepped onto the curb, walked on the sidewalk, and turned right toward the loca tion where her car was parked.

It hardly seems debatable that it created a substantial risk of injury. There is no suggestion in the record that Sandra Feldman was not using the sidewalk with due care in a reasonably foreseeable manner. As a consequence, we cannot say as a matter of law that the public property was not in a "dangerous condition" given the planter's incomplete state of construction and its location in the middle of the public sidewalk.

We also cannot say as a matter of law that the failure of Summit to take action to protect against the dangerous condition by timely completing construction of the planters or giving ade quate warning of their presence in the sidewalks was not palpa bly unreasonable under N.J.S.A. 59:4-2. See, e.g., Vincitore, supra, 169 N.J. at 130; Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 191 (2002) ("[A] jury could conclude that it was palpably unreasonable for the [public entities] not to warn or otherwise protect against the dangerously deep pond of which they had actual notice" and in which plaintiffs' twelve-year-old child drowned.). The record on appeal does not reflect the reasons for the ten-month delay after July 23, 2002, in install ing the wickets. Thus, there is no record support for the judge's conclusion that no reasonable juror could find that the delay in installing the wickets was patently unreasonable.

Furthermore, the judge failed to consider the issue of whether the conduct of Summit could reasonably be found by a fact-finder to have been palpably unreasonable because Summit took no action to warn pedestrians on the sidewalks of the tripping hazard presented by the partial construction of the planters. Summit was told by Amsterdam in or about July 2002 that the partially constructed planters presented a hazard to pedestrians. This was actual notice to Summit of the dangerous condition as required by N.J.S.A. 59:4-2(b) and ten or more months between notice and accident was more than sufficient to permit Summit to take measures to protect against the dangerous condition. Ibid. It was for a jury to decide whether Summit's action in electing to fill the planters with dirt without erect ing any type of barrier to warn pedestrians of the tripping haz ard created by the low-profile planter curbs was palpably unreasonable or not. We are satisfied that the judge should not have dismissed the Feldmans' action against Summit as a matter of law.

VI.

For the foregoing reasons, the summary judgment in favor of defendant Marsellis is affirmed but the summary judgments granted in favor of Maple and Summit are hereby reversed and the matter is remanded for trial on the merits. We do not retain
jurisdiction.

Defendants Berlitz Languages, Inc. (Berlitz), Alpine Landscaping (Alpine), Applied Landscaping (Applied), Miceli Kulik Williams & Associates (Miceli Associates), Scafar Contracting Corp. (Scafar) and Christopher P. Statile, P.A. (Statile), were dismissed without appeal or settled with plaintiffs.

We note that the Feldmans failed to comply with Rule 2:6-1(a)(1) and (2) because they included the briefs submitted on the summary-judgment motions in their appendix.

The parties to the summary-judgment motions did not fully comply with the requirements of Rule 4:46-2(a) and (b). As a consequence, it is somewhat difficult to ascertain what facts were admitted at that time.

The record does not establish the date when the SID was adopted.

The parties dispute ownership of the sidewalk, a dispute which can only be resolved with the abstract of title to Maple's property, the metes and bounds description, or a survey. That evidence is not part of the record before us, but ownership of the sidewalk is not determinative of the issues on appeal.

Stuart Brown, the former City Administrator for Summit, was deposed and testified that after Marsellis left the project, Summit "owned" the project. Once Scafar began work, it then had control of the project.

This is consistent with Amsterdam's testimony that much of the ivy planted in the boxes died over the winter as a result of rock salt from the street getting into the planters.

Moss did not opine that the design of the planters was defective nor do the Feldmans on appeal assert a design defect. As a consequence, we do not disturb the dismissal of any design defect claim.

No cross-appeal was filed by Summit from this determination.

Despite this finding, Judge Brotman determined that the hotel had no liability to plaintiff, whose claim was based on a design defect respecting the handicap ramp built by Atlantic City. May, supra, 128 F. Supp. 2d at 200-01.

If the intent of a municipality in this respect was determinative, we might not have concluded in Bedell that the metal grate around the tree was not intended for pedestrian traffic and might have affirmed the dismissal of Bedell's complaint.

It is not entirely clear from Amsterdam's testimony whether the planters had been filled up to the level of the sidewalk when he had this conversation and he was urging that they be filled to the top of the planter curbs. If, as Sandra Feldman testified, there was no tree in the planter at the time of her accident, it may be that Amsterdam was urging that the excavation done to accommodate the tree ball should be filled before he left the site. The records of construction maintained by Summit and its architect may clarify this ambiguity, but they are not part of the record on appeal and the precise issue is not relevant here.

Plaintiff cited only our decision. Carvalho v. Toll Bros. & Developers, 278 N.J. Super. 451 (App. Div. 1995), affirmed, 143 N.J. 565 (1996).

The judge did not discuss construction-site case law.

Alloway v. Bradlees, Inc., 157 N.J. 221 (1999).

(continued)

(continued)

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A-3429-06T2

May 5, 2008

November 7, 2008