LARISA SHOSHA v. CROFTON COMMONS ASSOCIATES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4690-06T34690-06T3

LARISA SHOSHA,

Plaintiff-Appellant,

v.

CROFTON COMMONS ASSOCIATES,

Defendant-Respondent.

___________________________________________________

 

Submitted January 7, 2008 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4078-05.

Greg Prosmushkin, attorney for appellant (James S. Sell, on the brief).

David B. Wright & Associates, attorneys for respondent (Harold H. Thomasson, on the brief).

PER CURIAM

Plaintiff filed this action against the defendant-landowner, claiming she sustained personal injuries when falling in defendant's parking lot as a result of slipping on pebbles. Finding that plaintiff was aware of this condition based on her prior encounter with a similar condition in another area of the parking lot, the trial judge granted summary judgment in favor of the defendant and dismissed the complaint. We reverse.

The circumstances may be simply stated. As described by plaintiff, on May 10, 2003, she drove to the Crofton Commons Condominium Complex to visit a friend. At approximately 7:00 p.m., plaintiff parked her car in a paved lot near her friend's unit, exited her vehicle and walked around the front of her car toward the sidewalk. Plaintiff testified at her deposition that "I just looked under my feet like you typically do to find out where I should step down [from her vehicle] and where I should be going and I saw the little pebbles." These pebbles, she testified, were scattered and present not only in the parking lot but also in the area of the sidewalk that she traversed on her way to her friend's condominium.

At approximately 10:00 p.m., plaintiff left her friend's condominium and walked to her car. Naturally, it was darker than it had been. Plaintiff could not say at her deposition whether or to what extent the area was illuminated.

A few hours earlier, plaintiff had approached her friend's door by walking around the front of her car and up a sidewalk. When she departed, plaintiff walked directly toward the passenger side of her car, across an area that had been covered by a parked car when plaintiff arrived. Plaintiff testified through an interpreter about her observations and actions -- immediately before she slipped and fell -- as she approached the passenger side of her vehicle:

Q. Do you remember whether you even looked at the ground as you were walking from the sidewalk over towards your car?

A. I remember I walked very carefully because I remember the stones here.

Q. Were you looking at the ground?

A. No, I did not look at the ground.

Q. Well, do you mean you were walking very carefully?

A. Because I remember it was pebbles. I walked very carefully.

Q. You say you walked very carefully. Were you feeling with your feet? Were you looking at the ground? Tell me what you mean by carefully.

A. I feel with my feet.

Q. You were feeling with your feet?

A. Yes.

Q. Were you looking at the ground when you were feeling with your feet?

A. I don't remember. Maybe I looked, I don't remember now.

. . . .

Q. As you were feeling with your feet, you say you were being very careful. Did you feel any of these pebbles or rocks?

A. I remember. When I walked, I feel with my feet some stones and suddenly.

Q. Were you kicking stones aside or were you walking on top of them?

THE INTERPRETER: I was kicking them away.

Q. Kicking them out of your way?

A. Yes.

Defendant's representative testified at a deposition that defendant had no notice of the condition of the parking lot complained of by plaintiff.

The trial judge described the issue raised by defendant's motion for summary judgment as whether "the duty [imposed on a landowner is] removed" "when there's no proof of notice or knowledge of a dangerous condition and if . . . plaintiff also had notice and knowledge of a dangerous condition"? Finding that "the plaintiff did have notice and knowledge of the condition, since she kicked the stones out of her way as she proceeded across the lot," the trial judge ruled in favor of defendant.

We review the judge's decision by applying the same standard that he was required to apply in ruling on defendant's summary judgment motion. Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Accordingly, we examine the factual record presented to the trial court to determine whether material facts were in dispute and whether the judge applied correct legal principles to those facts that were undisputed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

As a landowner, defendant owed plaintiff, who was an invitee, a non-delegable duty to provide "a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982). This includes the obligation to use "reasonable care to make the premises safe, including the duty to conduct a reasonable inspection to discover defective conditions." Handleman v. Cox, 39 N.J. 95, 111 (1963). Certainly, the scope of this multi-faceted duty extends to the areas that an invitee such as plaintiff would required to encounter in entering and exiting the premises. Defendant was obligated to use reasonable care to keep the parking lot safe for pedestrians and to conduct reasonable inspections to discover hazardous conditions.

The theory upon which defendant based its motion for summary judgment, which was adopted by the trial judge, was that a landowner's use of reasonable care to safely maintain premises is rendered irrelevant when an invitee is aware of the unsafe condition. We need not pass on the accuracy of this proposition because the record, when viewed in the light most favorable to plaintiff, does not clearly demonstrate that plaintiff had notice of the condition of the parking lot in the area in which she allegedly slipped and fell. That plaintiff was aware of the presence of stray pebbles on one side of her vehicle does not charge her with notice that a similar condition exists in another location of the parking lot. And although plaintiff was conscious of the possibility that other stray, hazardous pebbles may have been in other locations in the parking lot, and may have actually encountered some prior to falling, her deposition testimony also suggests that she was hampered by the fact that it was darker than it had been earlier. As she explained through an interpreter at her deposition, plaintiff was required to feel for stray pebbles with her feet when she exited her friend's condominium unit; we assume from this -- again, by viewing the factual record in the light most favorable to plaintiff -- that her ability to actually see pebbles on the paved surface was hampered by the fact that it was approximately 10:00 p.m. and the area was not adequately illuminated.

The imposition of a standard of care is governed by a "fact-specific and principled analysis" of the circumstances. Filipowicz v. Diletto, 350 N.J. Super. 552, 559 (App. Div.), certif. denied, 174 N.J. 362 (2002). That analysis turns on more than just the question of whether plaintiff's observations of pebbles in one location of a parking lot placed her on notice of -- and absolved defendant of liability for -- a similar condition in another area of the parking lot. Even assuming that the approach taken by the trial judge is consistent with the progress of the law of landowner liability -- a matter we need not now decide -- other facts suggest that the exoneration of the landowner in this circumstance is inappropriate. Ultimately, the imposition of liability in a given circumstance must be inconsistent with an "abiding sense of basic fairness." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Accordingly, we reject on this record the argument that plaintiff's awareness or expectation of the possibility of a hazardous condition absolves the landowner of a duty to remedy that condition, particularly when the hazard was increased by the lack of sufficient lighting -- a fact suggested by a liberal reading of plaintiff's deposition testimony, to which she is entitled at this stage of the proceedings.

Reversed and remanded for trial. We do not retain jurisdiction.

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A-4690-06T3

January 18, 2008