PAOLA OCAMPO v. FAMCO, LLC.

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2001-09T3

PAOLA OCAMPO,

Plaintiff-Appellant,

v.

FAMCO, LLC,1 and ELITE

MANAGEMENT,

Defendants-Respondents.

____________________________________

Argued September 14, 2010 Decided October 5, 2010

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1417-08.

Charles M. Hammer argued the cause for appellant (Mr. Hammer and Thomas Lynch, of counsel; Mr. Hammer, on the brief).

 

James J. Breslin, III, argued the cause for respondents (Barnaba & Marconi, L.L.P., attorneys; Dennis M. Marconi and Michael D. Brennan, of counsel; Mr. Brennan, on the brief).

PER CURIAM

Plaintiff Paola Ocampo appeals from the summary judgment dismissal of her personal injury negligence complaint against defendants Famco, LLC and Elite Management. We affirm.

The material facts are not in dispute. On October 11, 2004, sixteen-year old plaintiff fell from a second-story bedroom window in a Bergenfield apartment where she was living with her parents and which was owned and managed by defendants. The window from which she fell was closed but, according to plaintiff's expert, had a non-functioning lock and no screen. Although plaintiff has no recollection of what caused her to fall, she apparently was sleepwalking at the time. Plaintiff claims she has a history of sleepwalking, although she has never been diagnosed with, or treated for, this condition. And although her parents supposedly informed building maintenance of the malfunctioning window lock, it is undisputed that defendants were unaware that plaintiff was a sleepwalker. Nor did defendants ever have reason to know of her claimed condition, much less that plaintiff might attempt to climb out a closed window while sleepwalking. Indeed, there is no evidence to suggest that plaintiff ever injured herself while sleepwalking prior to this incident or that she previously opened doors or windows while in that condition. Although disputed by plaintiff's medical expert, defendant's expert opined that sleepwalkers are capable of performing a variety of tasks, including elaborate automatic motor behaviors such as unlocking locks and consequently, a locked window would not have prevented plaintiff's fall.

Plaintiff sued defendants for injuries allegedly sustained in the fall. Following discovery, defendants moved for summary judgment, which the trial court granted, concluding, as a matter of law, that defendants did not breach their duty of care to plaintiff and that the malfunctioning window lock was not the proximate cause of plaintiff's accident, which was unique and therefore not foreseeable. The judge reasoned:

And I know the defense position here is that, like the case he cites, there really - this case is very unique, and this issue of the locks the Court would resolve this way by saying I agree with the defense that the locks are to keep people out. They are for safety, there's no question about that, and - and that's what was testified to, and I know there's some expert testimony with respect to these locks.

 

However, I do regard, and I truly adopt most of the defense argument with respect to my decision on this motion for summary judgment. It - being the case that this was a sleepwalker, that condition was not known, and there's no medical evidence regarding that issue. And she fell from the window.

 

It - there is no, as I can claim it, no real reasonable explanation with respect to that fall. Such that it causes the Court to say . . . there's a material issue in dispute as to whether this defendant is negligent, or liable for the accident.

 

Because of the uniqueness of this particular case, and because the Court will say that I do, as I said before, agree with the defense argument and adopt those arguments in my own findings, I am moved to grant the defense motion for summary judgment for the reason stated.

 

We concur in this result.

The standard for summary judgment is "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). Yet "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. On appeal of a grant of summary judgment, the court applies the same standard as the judge below, deciding first whether there was a genuine issue of material fact and, if not, whether the lower court's ruling on the law was correct. Alloway v. Bradlees, Inc., 157 N.J. 221, 231-32 (1999).

In order to bring a successful suit for negligence, the plaintiff must demonstrate a duty, the breach thereof and proximate, or legal, cause of the plaintiff's injury. Caputzal v. The Lindsay Co., 48 N.J. 69, 74 (1966). "The test of negligence is 'whether the reasonably prudent person at the time and place should recognize and foresee an unusual risk or likelihood of harm or danger to others.'" Scully v. Fitzgerald, 179 N.J. 114, 125-26 (2004) (quoting Trentacost v. Brussel, 82 N.J. 214, 222 (1980)). Summary judgment may be appropriate if there is no legal basis for finding the existence of a duty or where defendants were not the proximate cause of plaintiff's injuries. Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 540-41 (1997) (remarking that courts have rejected liability as a matter of law in unique cases of "highly extraordinary consequences").

Foreseeability as a determinant of duty must "be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury." Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502-03 (1997). In the context of the duty determination, foreseeability is

the knowledge of the risk of injury to 'be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.'

 

[Id. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)).]

In other words, the probability of injury to another is the basis for the creation of a duty to avoid such injury, and therefore the test of negligence is whether "a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to the plaintiff or to those in a like situation would probably result." Kuzmicz, supra, 147 N.J. at 533 (quoting Hill, supra, 75 N.J. at 144).

In the context of proximate cause, on the other hand, foreseeability "relates to 'the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff' reasonably flowed from defendant's breach of duty." Clohesy, supra, 149 N.J. at 503 (quoting, Hill, supra, 75 N.J. at 143). Accordingly, "foreseeability in the proximate cause context relates to remoteness." Ibid.

As to the former, it is well-settled that a landlord has a duty to exercise reasonable care to keep the premises in a reasonably safe condition to guard against foreseeable dangers arising from the use of the premises. Coleman v. Steingberg, 54 N.J. 58, 63 (1969); Scully, supra, 179 N.J. at 118. Foreseeability of an unreasonable risk of harm to the reasonable person is the crucial factor in determining whether a duty exists. Trentacost, supra, 82 N.J. at 223; Jensen v. Schooley's Mountain Inn., Inc., 216 N.J. Super. 79, 81 (App. Div.), certif. denied, 108 N.J. 181 (1987) (citing Caputzal, supra, 48 N.J. at 75). In other words, a landlord's duty arises when foreseeable harm exists that falls within the landlord's control. Scully, supra, 179 N.J. at 123 (citing Braitman v. Overlook Terrace Corp., 68 N.J. 368, 382-83 (1975)). Thus, our courts have recognized a duty to exercise reasonable care to prevent foreseeable danger arising out of numerous circumstances. See, e.g., id. at 126-27 (recognizing a duty to guard against the risk of fire); Trentacost, supra, 82 N.J. at 223 (recognizing a duty to ensure "adequate security against foreseeable criminal conduct"); Coleman, supra, 54 N.J. at 63-64 (recognizing a duty of reasonable care with respect to the maintenance and operation of heating systems); Skupienski v. Maly, 27 N.J. 240, 248 (1958) (recognizing a duty of reasonable care in the maintenance of private sidewalks); Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div.), aff'd o.b., 63 N.J. 577 (1973) (recognizing a duty of reasonable care in the maintenance of plumbing and electrical equipment). Indeed, we have even extended the duty, in an appropriate circumstance, to the proper installation and maintenance of window screens. See Anderson v. Sammy Redd Assocs., 278 N.J. Super. 50, 55 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995).

In Anderson, the plaintiff, who had a two year old child, complained to the landlord's management of an improperly installed window screen. Id. at 52. Two months after the landlord improperly repaired the screen, the child fell through the open third floor apartment window to his death, after leaning upon the screen, which gave way to the child's weight. Ibid. The trial court, relying on the case of Egan v. Krueger, 103 N.J.L. 474, 476 (E. & A. 1927), granted summary judgment for the defendant, holding that the window screen was not a protective device and its intended purpose was to keep insects out while allowing air into the premises; consequently, the landlord could not be liable for improper installation of the window screen. Id. at 52-53. We reversed, holding that while the existence of a duty is a question of law to be determined by a court, questions of whether the defendant landlord breached that duty by installing a screen that did not properly fit the window frame and therefore created an unreasonable and foreseeable risk of harm to a small child's climbing instinct and curiosity were peculiarly within the competence of a jury. Id. at 54-55.

By the same token, a landlord's duty is not absolute because the landlord is not the "insurer" of the tenant's safety. Anderson, supra, 278 N.J. Super. at 54 (citing Terrey v. Sheridan Gardens, Inc., 163 N.J. Super. 404, 407 (App. Div. 1978)). Instead, as noted, a landlord's duty is limited to preventing foreseeable danger. Scully, supra, 179 N.J. at 121-22 (citing Braitman, supra, 68 N.J. at 381; Anderson, supra, 278 N.J. Super. at 54; Ellis v. Caprice, 96 N.J. Super. 539, 547 (App. Div.), certif. denied, 50 N.J. 409 (1967)).

Here, although questions of breach of duty and foreseeability are ordinarily for the jury to decide, we conclude that, under the present circumstances, no reasonable jury could find the risk from a malfunctioning window lock to be within the range of perception or apprehension of the reasonable landlord so as to impose liability for its non repair. Unlike Anderson, supra, where the improper repair of a window screen created the real risk that a two-year old occupant, in his normal use of the premises, could mistakenly rely upon the screen's strength and false appearance of safety, 278 N.J. Super. at 55, here it could not be reasonably anticipated that the residents of defendants' premises, the youngest of whom was sixteen-years old, would open an unlocked window while sleepwalking and fall or jump therefrom. In other words, plaintiff was simply not in the zone of risk created by defendants' allegedly tortious conduct. Undeniably, defendants had no knowledge of plaintiff's alleged medical condition, which, at all relevant times, was undiagnosed and untreated. Consequently, the risk created by defendants' non-repair of the window lock was not reasonably foreseeable.

Not only has plaintiff failed to demonstrate how such a hazard was reasonably foreseeable, but also that any breach of defendants' duty of reasonable care proximately caused her injuries. In order to demonstrate proximate causation, plaintiff must show that "'a person of ordinary experience and intelligence would have foreseen that the result complained of might ensue and, therefore, such was the proximate cause of'" her injury. Scully, supra, 179 N.J. at 126 (quoting Menth v. Breeze Corp., 4 N.J. 428, 444 (1950)). Proximate causation is a "combination of 'logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 264 (1985) (quoting Caputzal, supra, 48 N.J. at 77-78). Thus, foreseeability is a determinant in the proximate cause analysis. Hill, supra, 75 N.J. at 142-43. Foreseeability provides a basis for proximate causation as it "relates to 'the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff' reasonably flowed from defendant's breach of duty." Clohesy, supra, 149 N.J. at 503 (quoting Hill, supra, 75 N.J. at 143). Even though, ordinarily, "causation" is a factual question reserved for the jury, Anderson, supra, 278 N.J. Super. at 56, we conclude that, under these highly peculiar circumstances, a reasonable jury could not find that defendants' failure to repair the window lock should have resulted in harm to plaintiff.

Courts have rejected liability as a matter of law in unique cases of "highly extraordinary consequences." Kuzmicz, supra, 147 N.J. at 540-41 (citing Caputzal, supra, 48 N.J. at 77-80) (holding defendants not liable for plaintiff's heart attack caused by the sight of discolored water as a result of defective water softener); Glaser v. Hackensack Water Co., 49 N.J. Super. 591, 597 (App. Div. 1958) (holding defendants not liable for plaintiff's injury caused by fear of defendant's water meter reader). The Restatement (Second) of Torts similarly treats the occurrence of extraordinary circumstances:

The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

[Restatement (Second) of Torts 435(2) (1965).]

 

Mindful that "legal responsibility for the consequences of an act cannot be imposed without limit[,]" we declined to find a dram shop liable for a customer's death, even if it did serve him drinks when he was visibly intoxicated, where the customer climbed to the top of a tree, fell, rendered himself unconscious, and then drowned in a river. Jensen, supra, 216 N.J. Super. at 82. Finding this set of facts "bizarre," we held that such an "extraordinary occurrence . . . cannot reasonably be expected to follow from serving alcohol to one who is visibly intoxicated" and that liability under those events failed to "provide a fair, just or common sense basis to visit liability upon defendant." Ibid. Consequently, the court held the extraordinary circumstances in Jensen "transgress[ed] the judicial line beyond which liability should not be extended as a matter of fairness or policy." Ibid. (citing Caputzal, supra, 48 N.J. at 77).

The undisputed facts of the present case are equally unique and extraordinary. Here, the record is bereft of any evidence that plaintiff ever previously opened windows or doors - much less injured herself - while sleepwalking. Moreover, her expert's report that she would not have had the ability to open the window had it been locked shut amounts to no more than an inadmissible net opinion, lacking any scientific basis. See State v. Townsend, 186 N.J. 473, 494 (2006). Even so, any connection between the alleged cause - a malfunctioning window lock - and result - plaintiff's injury - is far too tenuous, remote and insignificant to justify imposing liability in this instance. Simply put, notions of fairness and common sense compel the conclusion that defendants should not be held legally responsible for plaintiff's injuries.

Affirmed.

1 FAMCO, LLC was incorrectly identified as FAMCO REALTY in plaintiff's complaint.