ROSE GILBERT v. MENDHAM INVESTMENT COMPANY L.P.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6041-07T36041-07T3

ROSE GILBERT,

Plaintiff-Appellant,

v.

MENDHAM INVESTMENT COMPANY,

L.P., EDWARD MERTON PAVING &

EXCAVATING CO., and MENDHAM VILLAGE

SHOPPING CENTER,

Defendants-Respondents.

________________________________________________________________

 

Submitted on April 29, 2009 - Decided

Before Judges Lyons and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-166-07.

Pitman, Mindas, Grossman, Lee, Bross and Moore, P.C., attorneys for appellant (Edward H. Lee, on the brief).

Law Offices of William E. Staehle, attorneys for respondents Mendham Investment Company, L.P., and Mendham Village Shopping Center (Erica B. Sherman, of counsel and on the brief).

Riker, Danzig, Scherer, Hyland & Perretti, L.L.P., attorneys for respondent Edward Merton Paving & Excavating Co. (Glenn D. Curving, of counsel; Mr. Curving and Peter M. Perkowski, Jr., on the brief).

PER CURIAM

Plaintiff Rose Gilbert appeals from orders granting summary judgment to defendants, dismissing her complaint for personal injuries sustained in a slip-and-fall accident at the Mendham Village Shopping Center in Mendham, New Jersey. We affirm.

Reviewing the record in the light most favorable to plaintiff, the facts can be summarized as follows.

On February 5, 2005, plaintiff, then eighty-five years old, fell in a parking lot on premises owned by defendants Mendham Investment Co., L.P., and Mendham Village Shopping Center (collectively, "Mendham Village"). She was walking from her home to a bank located within Mendham Village Shopping Center when she fell. Plaintiff was transported to the hospital by ambulance. She suffered a displaced fracture of the greater tuberosity of her left humerus, dislocation of her left shoulder and compression fractures of her thoracic vertebrae.

Plaintiff admitted that she did not look down at the ground where she was walking prior to the fall. Her recollection of the event was poor. She could not recall: whether she was alone or with someone at the time of her fall; whether she was on the sidewalk or the parking lot area when she fell; what time of day the fall occurred; or what kind of footwear she was wearing. She could not recall whether it was snowy and icy on the day she fell; whether it had snowed on the day of the fall; or whether it had snowed the day before. As the following excerpt from her deposition testimony indicates, she was also vague as to the condition of the ground where she fell:

Q. Do you know if you fell on patches of snow or did you fall on patches of ice?

A. Probably both.

A trace amount of snow had fallen on February 3. On February 4, the day before the accident, one-half inch of snow fell and defendant Edward Merton Paving & Excavating Co. ("Merton") spent about three hours at the site, depositing approximately eight tons of sand and calcium on the parking lot and sidewalks of Mendham Village Shopping Center.

Defendants moved for summary judgment. On appeal from the Orders granting summary judgment, plaintiff raises the following issues:

POINT I

THE COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

POINT II

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT MERTON.

Our review of the summary judgment motions is de novo. Prudential Prop. & Cas. Ins. Co., v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we must determine "whether the competent evidential 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 disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Defendants must show that, based upon the competent credible evidence, "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." Rule 4:46-2(c). To withstand summary judgment, plaintiff must come forward with evidence that creates a "genuine issue as to any material fact challenged." Brill, supra, 142 N.J. at 529.

Plaintiff's claims of negligence against both Mendham Village and Merton require proofs that each "breached a duty of reasonable care, which constituted a proximate cause" of her injuries. Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005). In granting summary judgment, the motion judge noted that plaintiff had failed to present "any evidence in support of her claims of negligence" other than her own deposition testimony. Plaintiff contends that a material issue of fact exists as to whether or not the efforts undertaken were reasonable and whether the hazard was removed.

Commercial property owners have a duty to maintain their own property Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004); Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 303 (App. Div. 2004), and to maintain abutting public sidewalks in a reasonably good condition, Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). In Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983), the Supreme Court held this duty "may require removal of snow or ice or reduction of the risk, depending upon the circumstances." The Court identified the obligations of plaintiff and defendant in a claim of negligence in these circumstances as follows:

The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition. The accident victim must also prove that the defective condition was a proximate cause of his injuries. Under some circumstances the pedestrian's conduct must be assessed to determine the existence of contributory negligence and its causal relationship to the mishap.

[Id. at 395-96 (emphasis added).]

See also Vasquez v. Mansol Realty Assocs., 280 N.J. Super. 234, 237 (App. Div. 1995).

It is, therefore, clear that defendant Mendham Village had a duty regarding both the parking lot and the sidewalk abutting its property. To successfully oppose Mendham Village's motion for summary judgment, plaintiff had to present competent credible evidence that Mendham Village failed to cause the area to be in a "reasonably safe condition" within a "reasonable period of time" and that the condition proximately caused her injuries. See Brill supra, 142 N.J. at 540.

Plaintiff has failed to present competent credible evidence to create a genuine issues of material fact regarding a breach of duty or proximate cause as to the alleged negligence of either Mendham Village or Merton. It is, of course, difficult to show that the area of the fall was not in a reasonably safe condition when plaintiff's recollection is such that she cannot say whether she fell on the sidewalk or the parking lot. Even when asked whether she fell on patches of snow or patches of ice, plaintiff's deposition testimony was no more than a guess: "Probably both." Plaintiff has presented no expert testimony or any other evidence to show that defendants breached a duty in the removal of snow at Mendham Village Shopping Center. Therefore, we find that the motion judge correctly concluded that plaintiff failed to provide sufficient evidence of negligence to withstand summary judgment.

Plaintiff also argues that the motion judge erred in denying her request to reopen discovery and compel the deposition of Edward Merton. The discovery period expired on May 13, 2008. Co-defendant Mendham Village served a timely notice to take Edward Merton's deposition but plaintiff failed to do so. The motion judge denied a motion to reopen discovery to compel that deposition after an arbitration date had been scheduled, noting that plaintiff had not "indicated what testimony Mr. Merton may offer to support plaintiff's claims."

On this appeal, plaintiff contends that, notwithstanding her own failure to seek this discovery, she should have been permitted to rely upon the notice served by a co-defendant to be entitled to depose Edward Merton. She has cited no authority to support this proposition. Rule 4:14-2, which establishes the general requirements for notice of a deposition, does not provide that a party may rely upon a notice given by another party to establish a demand for discovery.

As plaintiff's motion to extend discovery was made after an arbitration date was scheduled, a showing of exceptional circumstances was required to warrant the relief sought. Rule 4:24-1(c); Bender v. Adelson, 187 N.J. 411, 427 (2006). On this appeal, plaintiff has not contended that such exceptional circumstances existed. Her mistaken belief that she could rely upon the notice of deposition served by co-defendant Mendham Village constitutes nothing more than inadvertence, which is plainly insufficient to constitute exceptional circumstances. Vitti v. Brown, 359 N.J. Super. 40, 49-53 (Law Div. 2003). The denial of this motion is subject to an abuse of discretion standard. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted, 185 N.J. 290 (2005). Given the absence of any exceptional circumstances, we find that the motion judge did not abuse his discretion in denying plaintiff's motion to extend discovery.

Affirmed.

 

Contrary to plaintiff's assertion, the duty requires reasonable efforts and does not impose strict liability to remove all hazards. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993).

(continued)

(continued)

8

A-6041-07T3

June 3, 2009