BRIDGET DAVIDSON v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5158-10T4

BRIDGET DAVIDSON,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY,

Defendant,

and

7-11 STORE,

Defendant-Respondent,

and

JITENDRA PATEL,

Defendant/Third-Party

Plaintiff-Respondent,

v.

TROPICANA CASINO AND RESORT,

2922 ATLANTIC AVE., LLC, and

ATLANTIC COUNTY IMPROVEMENT AUTHORITY,

Third-Party

Defendants-Respondents.

__________________________________________________

February 5, 2013

 

Argued September 19, 2012 - Decided

 

Before Judges Fisher and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2418-07.

 

Clifford L. Van Syoc argued the cause for appellant (Van Syoc Chartered, attorneys; Mr. Van Syoc, on the brief; Sebastian B. Ionno and D. Rebecca Higbee, on the brief).

 

Daniel M. Young argued the cause for respondent Jitendra Patel (Ward Greenberg Heller & Reidy, LLP, attorneys; Mr. Young and Amy L. Hansell, on the brief).

 

Jose D. Roman argued the cause for respondent 2922 Atlantic Avenue, LLC (Powell & Roman, L.L.C., attorneys; Mr. Roman, on the brief).

 

James J. Law argued the cause for respondent Atlantic County Improvement Authority (Campbell, Lipski & Dochney, attorneys; Mr. Law, on the brief).

 

PER CURIAM
 

Plaintiff Bridget Davidson appeals the October 14, 2009 order of the Law Division denying her motion to amend her complaint to add direct claims against the Atlantic County Improvement Authority (ACIA) and 2922 Atlantic Avenue, LLC (the landlord). Davidson also appeals the November 20, 2009 order granting defendant Jitendra Patel's1 motion for reconsideration; vacating the October 14, 2009 order denying summary judgment to Patel; and granting summary judgment in favor of Patel. A consensual stipulation of dismissal with prejudice, filed on May 12, 2011, was entered into by Davidson and defendant, City of Atlantic City.

I.

On July 19, 2005, Davidson was walking toward the 7-11 store located at Morris and Atlantic Avenues in Atlantic City, when she tripped and fell over the raised concrete footing which formed the base of a traffic signal. As a result of the fall, she suffered injuries. Davidson's expert opined that the projection of the foundation of the traffic light base was sufficient to constitute a trip hazard. The traffic light is owned and maintained by the City of Atlantic City. The traffic light, including its base, is not owned or controlled by Patel, the ACIA, or the landlord. Patel was a franchisee and sub-tenant of 7-11, Inc., which leased the 7-11 store from the landlord. The building in which the 7-11 is located is multi-tenanted.

On July 19, 2007, Davidson filed a complaint against the City and Patel. On September 19, 2007, an answer was filed on behalf of Patel, and on June 27, 2008, Patel filed a third-party complaint against Tropicana Casino & Resort, the ACIA, and the landlord. On August 20, 2009, Patel filed a motion for summary judgment, which Davidson opposed. She cross-moved for leave to file an amended complaint, adding as direct defendants all third-party defendants previously named by Patel.

The motion judge heard oral argument on both motions. He denied Patel's motion for summary judgment and Davidson's cross-motion to file an amended complaint. During the course of oral argument, a colloquy took place among the motion judge and counsel. After discussing with counsel the obligation of a business owner to provide safe ingress and egress to its patrons, the judge noted that unlike a sidewalk, here the offending condition was a traffic light. The judge noted that a commercial tenant would not have the right to take the traffic light down, move it, or remove it. Davidson's counsel asserted that a business owner would have an obligation to alert a pedestrian to an unsafe condition, perhaps by better lighting or painting the traffic light base with "glow paint." Davidson acknowledged that this solution was not present in her expert's report.

Based on the hypothetical remediation offered by Davidson, the motion judge denied Patel's motion for summary judgment. In a colloquy after the judge's ruling, Patel asserted that business owners in Atlantic City would not have the obligation or the right to spray paint traffic light bases. Counsel questioned "whether or not painting these bases would be against city law and some sort of vandalism." The motion judge then invited reconsideration of her decision by giving Patel an opportunity to provide the court with "an ordinance that would forbid him from doing any of those things[.]"

The motion judge then proceeded to the issue of Davidson's request to amend her complaint to add as direct defendants certain third-party defendants. The motion judge addressed the statute of limitations and the fact that the request to amend the complaint was not filed until over four years after the accident. The court noted,

there is a statute of limitations problem, and the statute of limitations is the same for filing a complaint against a third-party defendant as it is for filing against a new defendant, and I don't know how four years afterwards you can file a direct action against a party who [you] didn't name and who you didn't identify in your original complaint.

 

The judge proceeded to deny Davidson's request to amend her complaint. The ACIA posited that in addition to the statute of limitations applicable to a negligence action, the ACIA enjoys the protection of the Torts Claim Act.

Patel filed a motion seeking reconsideration pursuant to Rule 4:49-2. In a comprehensive written opinion, Judge Carol E. Higbee granted Patel's motion for reconsideration, vacated the October 14, 2009 order denying summary judgment, and entered summary judgment in favor of Patel.

II.

In this appeal, Davidson argues that the motion judge erred because: Patel had a duty to provide safe ingress and egress from his store to the street for his patrons; Patel's motion was improperly filed as one for reconsideration; and the judge erred in denying Davison's motion for leave to file an amended complaint. After carefully reviewing the record and arguments in light of the applicable legal principles, we are unpersuaded by Davidson's arguments.

In our review of the order granting summary judgment, we must review the facts in the light most favorable to the non-moving party, R. 4:46-2(c), and apply the same standard of review as the trial court. Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009). Summary judgment is appropriate if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The issue whether Patel had a duty to maintain or remediate the traffic signal where plaintiff was injured is a question of law, Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996), which we review de novo, without deference to the motion judge's conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

The central issue in this appeal is whether Patel had a duty to Davidson to provide safe passage by either painting the traffic light post or providing better lighting. Patel provided the judge with a State statute and a municipal ordinance which prohibit him from painting the City's traffic signal. See N.J.S.A. 2C:17-3; Atlantic City Municipal Code Article II, Chapter 204. In her written decision on the motion for reconsideration, the judge held:

On further review, it is evident that the traffic light post is not Patel's property and under applicable statutes, Patel may not be able to paint it. Furthermore Davidson has not come forward with any expert that discusses either the lighting or the ability to paint the traffic light post.

In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), the Supreme Court described the principles generally applicable to a determination of whether a duty of care exists:

Whether a person owes a duty of reasonable 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 opportunity and ability to exercise care, and the public interest in the proposed solution.

 

[Id. at 439 (citations omitted).]

Our analysis is to be 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.

The line of cases expanding the duty of a commercial landowner began with the Supreme Court's formulation of a new rule in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), that imposed a duty upon commercial landowners to "maintain[] in reasonably good condition the sidewalks abutting their property and [made the landowners] liable to pedestrians injured as a result of their negligent failure to do so." Id. at 157. The holding was based upon an assessment of various factors relating to public policy that remain relevant to a consideration of whether a duty should be imposed here.

The duty of a commercial landowner was further extended beyond the abutting sidewalk to a parking lot across the street in Warrington v. Bird, 204 N.J. Super. 611 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986). We described the "critical element" in determining liability to be "the expectation of the invitee that safe passage will be afforded from the parking facility to the establishment to which they are invited." Id. at 617. The two significant factors in imposing the duty upon the landowner in Warrington were that the location of the injury was in "the expected route" the proprietor's patron would take to the business and that the condition was one that the proprietor "might reasonably remedy." Warrington, supra, 204 N.J. Super. at 617-18 (emphasis added). The record before us does not disclose whether the expected route was over the base of the traffic light.

The ruling in Stewart was extended to commercial tenants in Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124 (App. Div. 1986). We observed that the public policy considerations found in Stewart were equally valid "whether the defendant is the owner or an exclusive occupant of the commercial property." Id. at 128. Here, the motion judge did not address whether those considerations apply, however, to tenants in a multi-tenant building, such as Patel.

The judge grounded her decision on the ability of Patel to "reasonably remedy" an unsafe condition which is a significant factor in determining what duty, if any, should be imposed. See Monaco v. Hartz Mt. Corps., 178 N.J. 401, 419 (2004) ("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."); Pote v. City of Atl. City, 411 N.J. Super. 354, 368-69 (App. Div.), certif. denied, 202 N.J. 43 (2010) (summary judgment in favor of property manager held appropriate where, inter alia, no evidence presented that the commercial enterprise had the ability and authority to shovel, salt, or place warning signs on the boardwalk owned and controlled by municipality); Warrington, supra, 204 N.J. Super. at 617 (describing a proprietor's duty to exercise reasonable care for its patrons' safety in traveling from a parking lot across the roadway from its establishment as a duty to address an "unsafe condition in that route which it might reasonably remedy[.]").

We are therefore satisfied that the application of the relevant legal principles and policy considerations to the facts of this case do not provide a basis for the imposition of a duty and corresponding liability upon Patel. In our view, it would not comport with basic principles of fairness to impose a duty on Patel, in a building occupied on a regular basis by others, to maintain, repair, or paint a traffic light foundation owned and maintained by the City. The fact that the traffic light is owned by a public entity, which may itself be immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to N.J.S.A. 59:14-4, while unfortunate for Davidson, does not justify imposing liability upon a tenant such as Patel, where liability otherwise would not exist.2

W

e are further satisfied that the remaining arguments raised by plaintiff lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments. The judge invited the submission by Patel of statutes or ordinances which the court may have overlooked, and reconsideration is a matter within the sound discretion of the court to be exercised in the interests of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Secondly, the motion judge properly did not grant leave to amend Davidson's complaint since, as the judge stated, the statute of limitations "is the same for filing against a third party defendant as it is for filing against a new defendant[.]" Davidson offers no support for the assertion that the judge erred in her decision and we see none.

Affirmed.

1 Patel was improperly named in the complaint as "7-11 store."

2 Plaintiff represents in her brief that the case against the City was resolved on May 12, 2011.